j*'«T*"  •  «»'*r^ 


^T^HIS  volume  is  published  by  authority  of  the  Exe- 
■*-     cutive  Board  of  the  Graduate  School  of  the  Univer- 
sity of  Michigan.      A  list  of  other  volumes  thus  far 
published  or  arranged  is  given  at  the  end  of  this  volume. 


THE   SENATE  AND   TREATIES 

1789-1817 


THE  MACMILLAN  COMPANY 

NEW   YORK  BOSTON  CHICAGO 

ATLANTA  SAN    FRANCISCO 

MACMILLAN  «fe  CO.,  Limited 

LONDON    BOMBAY     CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ltd. 

TORONTO 


THE     SENATE 
AND  TREATIES 

1789-1817 

THE  DEVELOPMENT  OF  THE  TREATY- 
MAKING     FUNCTIONS     OF     THE 
UNITED     STATES     SENATE 
DURING   THEIR   FORM- 
ATIVE   PERIOD 


BY 

RALSTON  HAYDEN,   Ph.D. 

ASSISTANT   PROFESSOR   OF   POLITICAL   SCIENCE 
UNIVERSITY   OF   MICHIGAN 


iI5eto  gork 

THE  MACMILLAN  COMPANY 

London:  Macmillan  &  Company,  Limited 

1920 

All  rights  reserved 


CopjTight,  1920 
By  THE  UNIVERSITY  OF  MICHIGAN 


>:xc5MAMGK 


THE 'PLIMPTON  -PRESS 
NOR  WOOD*  MASS*  U*  8»A 


TO 
MY  MOTHER  AND  FATHER 


427760 


PREFACE 

This  book  is  a  study  in  detail  of  the  treaty- 
making  powers  of  the  United  States  Senate  during 
the  formative  period  of  then-  history.  This  period 
is  conceived  to  extend  from  1789  to  just  a  Uttle 
beyond  the  first  twenty-five  years  of  government 
under  the  Constitution.  No  powers  of  the  federal 
government  underwent  a  more  interesting  develop- 
ment during  this  first  quarter-century  than  did 
those  which  have  to  do  with  the  making  of  treaties. 
There  are  good  reasons  for  this.  The  treaty  clause 
of  the  Constitution  is  so  flexible  that  the  exact  re- 
lations of  the  Senate  and  the  executive  in  treaty- 
making  could  be  worked  out  only  in  actual  practice. 
And  there  never  has  been  a  period  in  the  history  of 
this  nation  when  foreign  relations  —  threats  of  war, 
avoidances  of  armed  conflicts,  diplomatic  defeats 
and  victories,  treaties  made  and  denounced  —  have 
played  so  vital  a  part  in  the  affairs  of  the  govern- 
ment and  in  the  lives  of  the  people.  The  young 
republic  was  fixing  her  status  in  the  family  of  nations 
—  finding  her  level  among  a  jostling  throng  who 
regarded  her  with  indifferent,  hostile,  or  designing 
eyes.  Consequently  that  part  of  her  constitutional 
organization  which  concerned  treaty-making,  and 
foreign  relations  generally,  was  rapidly  developed 
by  constant  application  to  the  problems  of  actual 
government. 


X  PREFACE 

After  the  War  of  1812  the  United  States  turned 
her  thoughts  and  her  energies  more  largely  into 
domestic  channels.  Her  treaty-making  power  was 
exercised  in  a  new  spirit  after  1815.  But  if  the 
spirit  of  American  diplomacy  has  changed  with  the 
generations  since  Monroe  entered  the  WTiite  House, 
the  manner  in  which  this  country  has  made  the  in- 
ternational agreements  which  are  also  her  national 
laws  has  been  altered  but  little.  This  is  particularly 
true  of  the  manner  in  which  the  Senate  has  per- 
formed its  part  in  the  making  of  treaties.  The 
Senate  is  a  conservative  body.  Its  procedure  in 
dealing  with  treaties  and  its  relations  with  the  ex- 
ecutive in  the  performance  of  their  jomt  functions 
are  to-day  very  much  as  they  were  a  century  ago, 
although  quite  different  from  what  they  were  ex- 
pected to  be  in  1789.  It  is  for  these  reasons  that 
the  first  twenty-five  years  under  the  Constitution 
have  been  said  to  be  the  formative  period  in  the 
history  of  the  treaty-making  functions  of  the 
Senate. 

In  the  events  of  these  years  the  writer  has  at- 
tempted to  discover  the  conception  of  the  place  of 
the  Senate  in  treaty-making  then  held  by  the 
various  departments  of  the  government,  to  trace 
the  development  of  the  procedure  of  the  Senate  in 
the  transaction  of  treaty  business,  to  ascertain  the 
relations  between  the  Senate  and  the  executive  in 
this  field,  and  to  investigate  the  effect  of  the  posi- 
tion of  the  Senate  in  our  constitutional  system  upon 
the  relations  between  the  United  States  and  other 
nations.  The  study  has  been  carried  to  the  year 
1817  for  the  purpose  of  examining  the  early  exercise 


PREFACE  xi 

of  the  treaty  functions  after  they  had  reached  their 
normal  development. 

The  writer  makes  grateful  acknowledgment  of 
his  obligations  to  Professor  Jesse  S.  Reeves,  under 
whose  dii-ection  the  work  was  undertaken  and  com- 
pleted, to  Professor  Uh-ich  B.  Phillips  for  carefully 
reading  the  text,  and  to  his  wife  for  valuable  lit- 
erary assistance.  He  is  also  indebted  to  The 
American  Journal  of  International  Law  for  permission 
to  reprint  as  Chapter  VIII  an  article  which  first 
appeared  in  that  magazine. 

Ralston  Ha  yd  en 

Ann  Akbor,  Michigan 
October,  1919 


TABLE   OF   CONTENTS 

CHAPTER  I 

PAGE 

The  First  Exercise  of  the  Treaty-making  Power 1 

Introduction  to  study  of  early  period  —  French  Consular 
Convention,  1788  —  History  of  negotiation  —  Advice  and 
consent  to  ratification  —  Personal  relations  between  execu- 
tive and  Senate  —  Senate  action  based  upon  general  prin- 
ciple that  obligation  exists  to  ratify  treaty  signed  by 
authorized  agent,  and  on  promises  of  Congress  to  ratify 
this  convention  —  Jay's  opinion  —  Relation  between  partici- 
pation of  Senate  in  negotiation  and  its  obhgation  to  advise 
and  consent  to  ratification  —  Bearing  on  international 
relations  of  the  United  States. 

CHAPTER  II 

Development  of  Treaty-making  Power  through  Action 
ON    Treaties  with  Indian  Tribes,  178{>-1795 11 

Problems  of  procedure  solved  by  action  on  Indian  treaties  — 
Treaties  of  Fort  Harmar  —  Decided  that  advice  and  con- 
sent of  the  Senate  should  be  formally  given  to  such  pacts  — 
Senate  refuses  to  act  upon  one  of  them  —  Personal  nature 
of  relations  between  executive  and  Senate  —  Discussion  of 
the  constitutional  part  assigned  to  the  Senate  in  the  negotia- 
tion of  treaties  —  Provision  made  for  personal  meetings  with 
the  President  —  Conference  on  negotiation  of  treaty  with 
Creek  Indians  proves  personal  consultation  to  be  imprac- 
ticable —  Subsequent  action  on  Creek  treaty  —  In  treaty 
with  Cherokees  Senate  advice  received  in  advance,  but  not 
in  personal  consultation  —  Senate  promises  to  ratify  treaty 
concluded  in  accordance  with  instructions  which  it  has 
approved  —  Ratification  —  Rejection  of  General  Putnam's 
treaty  of  1793  —  Other  treaties  with  Indian  tribes  during 
Washington's  administrations  —  Changes  in  procedure  — 
Senate  approval  of  additional  articles. 


XIV  CONTENTS 

CHAPTER   III 

PAGE 

The  Treaties  with  Algiers  and  Spain,  1790-1796  ...  40 
Complicated  problem  presented  by  commerce  in  Mediter- 
ranean —  Senate  adopts  committee  report  advising  ransom 
of  Algerine  captives  and  confirmation  of  treaty  with  Morocco 
—  President  requests  appropriation  in  advance  —  Senate 
advises  suspension  of  negotiation  for  ransom  of  captives  — 
Significance  of  this  action  —  Injiext  session  Senate  advises 
ransom  of  captives  and  negotiation  of  treaty  with  Algiers  — 
Struggle  with  President,  who  desires  appropriation  in  ad- 
vance —  Victory  of  Washington  —  Negotiation  and  rati- 
fication of  treaty  —  Treatj^  of  San  Lorenzo  el  Real  —  In  con- 
firming appointment  of  negotiators  the  Senate  agrees  to 
consent  to  ratification  of  treaty  negotiated  by  them  — 
Senate  consents  to  extension  of  their  powers  —  Ratification 
of  treaty. 

CHAPTER  IV 

The  Jay  Treaty 58 

Early  relations  of  the  President  and  the  Senate  upon  the 
subject  of  Anglo-American  affairs  —  Washington  asks  and 
receives  advice  in  1 790  —  Results  of  mission  of  Gouverneur 
Morris  laid  before  the  House  and  the  Senate  —  Drifting 
towards  war  —  Peace  mission  planned  by  Hamilton  and 
small  group  of  Federahst  Senators  —  Part  played  by  group 
in  securing  consent  of  Wasliington  in  the  selection  of  the 
envoy,  in  securing  his  acceptance  by  the  Senate,  and  in 
drawing  his  instructions  —  Senate  declines  to  ask  for  in- 
structions when  nomination  is  confirmed  —  Struggle  for 
ratification  of  the  treaty  —  Amended  by  its  friends  —  It  is 
decided  that  resubmission  of  amended  treaty  is  not  neces- 
8ar>'  —  England  makes  no  objection  to  conditional  ratifica- 
tion —  Senate  fails  to  preserve  secrecy  on  treaty  —  Accept- 
ance of  Jay  treaty  by  Senate  tends  to  confirm  President  in 
practice  of  not  consulting  Senate  in  advance  as  to  details 
of  proposed  treaties  —  Summary. 

CHAPTER   V 

The  Creek  Treaty  of  1796 95 

The  Creeks,  the  State  of  Georgia,  and  the  United  States  — 
General  nature  of  proposed  treaty  laid  before  Senate  when 


CONTENTS  XV 

PAGE 

commissioners  arc  nominated  —  Georgia  objects  to  treaty 
and   appeals   to   Senate  —  Senate   amends   treaty  —  Inter- 
pretation of  French  treaty  of  1778  —  Execution  of  tre.aty      ^^,^ 
with  Algiers  —  Summary  of  exercise  of  treaty-making  power 
during  Washington's  administrations. 

CHAPTER  VI 

Treaties  of  the  Administration  of  John  Adams 107 

Procedure  on  Tripolitan  treaty  of  1796,  and  the  supplementary 
article  to  the  Jay  treaty  —  Senate  amendments  to  the  com- 
mercial treaty  of  1797  with  Tunis  —  Prussian  treaty  of  1799 
indicates  possibility  of  Senate  control  through  powers  of  ap- 
pointment —  The  Senate  amendments  to  treaty  of  1800 
with  France  an  example  of  influence  of  Senate  in  foreign 
affairs,  and  of  its  participation  in  negotiation  —  Formulation 
of  Senate  rules  of  procedure  on  treaties. 

CHAPTER  Vn 

The  Senate  and  the  Treaties  of  Thomas  Jefferson.  .  .  130 
Claims  convention  of  1802  with  Spain  —  Vacillation  of  Senate 
—  Final  acceptance,  and  result  of  delay  —  Senate  resents  in- 
terference of  American  lawyers  —  The  Louisiana  Purchase  — r 
President  given  a  free  hand  in  negotiation  —  Cabinet  ad- 
vises Jefferson  not  to  lay  treaty  before  Senate  and  House  at 
same  time  —  Prompt  advice  to  ratify  given  by  Senate  — 
Attempt  to  advise  further  negotiation  —  The  King-Hawkes- 
bury  Convention  —  Senate  rejects  Article  5  —  England 
declines  to  accept  principle  that  the  United  States '  may 
ratify  with  amendments  —  John  Quincy  Adams  and  the 
treaty  of  1805  with  Tripoli. 

CHAPTER  vnr 

The    Genesis    of    the    Senate    Committee    on    Foreign 

Relations 169 

Committee  grew  out  of  legislative,  not  executive,  functions  of 
Senate  during  period  of  stress  —  Committees  on  foreign 
relations  during  administrations  of  Washington  —  No  regu- 
lar procedure  on  subject,   and  no  standing  committee  — 


XVI  CONTENTS 

PAGE 

Little  progress  during  Adams's  administration  —  Natural 
tendency  in  direction  of  system  later  evolved  —  From  1807 
on,  more  rapid  development  through  custom  of  referring 
various  parts  of  annual  message  to  select  committees  which, 
in  fact,  sat  throughout  session  and  to  which  were  referred 
most  matters  within  their  respective  fields  —  "Committee 
on  Foreign  Relations"  —  Specialization  of  functions  —  In 
1816  becomes  the  first  standing  committee  of  the  United 
States  Senate. 

CHAPTER  IX 

The  Treaty-making  Powers  of  the  Senate  at  the   End 

OF  the   Formative  Period,  1815-1817 196 

Procedure  on  Treaty  of  Ghent,  commercial  convention  of 
1815  wath  Great  Britain,  and  treaty  of  peace  with  Algiers  — 
'^  In  its  main  outhnes  procedure  of  Senate  on  treaties  fixed  — 
Principle  that  ordinarily  Senate  shall  not,  on  its  own  initi- 
ative, advise  the  President  to  negotiate  in  accordance  with 
detailed  plan  —  Action  in  1806  and  in  1815  —  Acceptance 
by  foreign  states  of  treaties  amended  by  the  Senate  —  Negoti- 
ations which  secured  acquiescence  of  Sweden  to  Senate 
amendments  to  treaty  of  1816  with  Sweden  and  Norway. 

Bibliography 217 

Index 227 


THE 
SENATE    AND    TREATIES 

CHAPTER   I 

The  First  Exercise  of  the  Treaty-making 
Power 

On  the  twenty-fifth  of  May,  1789,  while  the 
Senate  of  the  first  Congress  under  the  Constitution 
was  engaged  in  debating  the  impost  bill,  a  message 
was  announced  from  the  President  of  the  United 
States  to  be  delivered  by  General  Knox.  The  dis- 
tinguished messenger  advanced,  laid  a  bulky  pack- 
age of  papers  on  the  table  before  John  Adams,  the 
President  of  the  Senate,  and  withdrew.  The  mes- 
sage transmitted  to  the  upper  house  of  the  national 
legislature  for  its  constitutional  action  two  treaties 
with  Indian  tribes  which  had  been  negotiated  and 
signed  under  the  authority  of  the  Continental 
Congress,  together  with  sundry  papers  respecting 
them.  It  was  ordered  that  the  message  of  the 
President,  with  the  accompanying  papers,  lie  on 
the  table  for  consideration,  and  the  Senate  returned 
to  the  debate  in  which  it  had  been  engagedi^    Thus 

1  Journal  oj  the  Exeaitive  Proceedings  of  the  Senate  of  the  United 
Stales  of  America.  From  the  Commencement  of  the  First  to  the  Ter- 
mination of  the  Nineteenth  Congress  (Washington,  1828),  I.  3.  Cited 
below  as  Sen.  Exec.  Jour. 

The  Journal  of  William  Maclay,  United  States  Senator  from 
Pennsylvania,  1789-1791,  p.  49  (ed.  1890). 

1 


Z  THE    SENATE    AND    TREATIES 

for  the  first  time  the  Senate  was  faced  with  the  ex- 
ecutive duties  laid  upon  it  by  the  treaty  clause  of 
the  Constitution.  This  clause  declares,  ''He  [the 
President]  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  provided 
two-thirds  of  the  Senators  present  concur;  ..." 
In  these  few  words  one  of  the  most  important  powers 
of  government  is  vested  in  the  chief  executive  and 
the  upper  house  of  the  Congress  of  the  United 
States.^  This  bare  grant  told  Washington  and  the 
members  of  the  first  Senate,  as  it  tells  us,  merely 
that  they  were  the  joint  possessors  of  this  great 
power.  With  that  elasticity  in  details  which  calls 
forth  the  admiration  of  the  most  discerning  critic 
of  our  commonwealth,  the  Constitution  left  to  suc- 
cessive Senates  and  to  successive  Presidents  the 
problem  and  the  privilege  of  determining  under 
the  stress  of  actual  government  the  precise  manner 
in  which  they  were  to  make  the  treaties  of  the  nation. 
At  no  subsequent  period  was  more  done  to  fix  the 
relative  powers  of  the  President  and  the  Senate  in 
treaty-making,  and  to  determine  when  and  how  the 
Senate  should  exercise  its  functions  in  this  field 
than  during  the  administrations  of  President  Wash- 
ington; the  precedents  which  were  then  set,  either 
on  the  basis  of  fii'st-hand  knowledge  of  the  intention 

1  Burr,  The  Treaty-Making  Power  of  the  United  States  and  the 
Methods  of  Its  Enforcement  as  Affecting  the  Police  Powers  of  the 
Slatis,  gives  a  clear  account  of  the  evolution  of  the  treaty  clauses  of 
the  Constitution  in  the  Federal  Convention.  See  also  Moore,  Inter- 
national Law  Digest,  V.,  xviii,  for  a  discussion  of  the  treaty  power, 
the  negotiation  and  conclusion  of  treaties,  their  ratification,  agree- 
ments not  submitted  to  the  Senate,  and  the  enforcement,  inter- 
pretation, and  termination  of  treaties. 


TREATY-MAKING    POWER  6 

of  the  framers  of  the  Constitution,  or  through  the 
necessities  of  the  moment,  have  governed,  in  large 
part,  the  manner  in  which  these  functions  have  been 
performed  ever  since. 

Certainly  if  any  body  of  men  ever  have  been  quali- 
fied   by    experience    to    complete    harmoniously    in 
working  detail  the  general  plan  of  the  constitutional 
convention    of    1787,    those   men   were    the   early 
Senators,  the  members  of  the  early  cabinets,  and 
the  first   President.     We   have  only   to   recall   the 
personnel  of  these  early  governments  to  realize  the 
extent  to  which  this  is  true.     Of  the  sixty-six  men 
who  served  in  the  Senate  during  Washington's  ad- 
ministrations, thirty-one  had  been  members  of  the 
Contmental  Congress  or  of  the  Congress  of  the  Con- 
federation, twelve  had  helped  draft  the  Constitution 
in  the  convention  at  Philadelphia,  and  ten  had  been 
members  of  state  conventions  which  had  ratified 
the  federal  instrument.     Many  had  been  active  in 
organizing  the  rebellion   and  had   served  with  dis- 
tinction in  the  revolutionary  forces  and  in  the  legis- 
latures and  constitutional  conventions  of  their  own 
states.     Together  with  the  members  of  the  executive 
branch  of  the  government  they  formed  a  body  of 
men  trained  in  politics  and  statesmanship,  and  emi- 
nently qualified  to  apply  the  newly  made  Consti- 
tution, not  only  wisely,  but  in  the  spirit  of  the  great 
convention  which  had  framed  it,  and  of  the  state 
assemblies  whose  action  had  made  it  the  supreme 
law  of  the  land. 


4  THE  SENATE  AND  TREATIES 

THE  CONSULAR  CONVENTION  WITH  FRANCE,  1788 

Although  the  two  pacts  signed  with  Indian  tribes 
at  Fort  Harmar  and  submitted  to  the  Senate  on 
May  2,  1789,  were  the  first  treaties  to  be  laid  be- 
fore that  body,  it  was  to  the  ratification  of  a  con- 
sular convention  with  France  that  the  Senate  first 
gave  its  advice  and  consent.  This  convention  was 
a  heritage  from  the  government  under  the  Con- 
federation. Its  previous  history  is  succinctly  told 
by  J.  C.  B.  Davis,  as  follows: 

On  the  25th  of  January,  1782,  the  Continental  Congress 
passed  an  act  authorizing  and  directing  Dr.  Franklin  to 
conclude  a  Consular  Convention  with  France  on  the 
basis  of  a  scheme  which  was  submitted  to  that  body. 
Dr.  Franklin  concluded  a  very  different  convention, 
which  Jay,  the  Secretary  for  Foreign  Affairs,  and  Congress 
did  not  approve.  Franklin  having  returned  to  America, 
the  negotiations  then  fell  upon  Jefferson,  who  concluded 
the  Convention  of  1788.^ 

On  June  11,  1789,  Washington  laid  this  conven- 
tion before  the  Senate.-  One  of  the  striking  aspects 
of  the  subsequent  proceedings  is  the  close  relation- 
ship which  was  set  up  between  the  Senate  and  John 
Jay,  who  still  filled  the  office  of  Secretary  of  Foreign 
Affairs,  which  had  been  held  over  from  the  govern- 
ment under  the  Confederation.  The  message  sub- 
mitting the  convention,  after  briefly  mentioning  the 

'  Davis,  "Notes  Ui)on  tlie  Foreign  Treaties  of  the  United  States," 
in  Treaties  and  Convenlions  Concluded  Between  the  United  States 
of  America  and  Other  Powers  since  July  4,  1776,  pp.  1217-1406. 
See  pp.  1293-129.5.  Davis  here  gives  a  brief  account  of  the  negoti- 
ation of  the  treaty  and  the  action  of  the  Senate  upon  it. 
^  Sen.  Exec.  Jour.,  I.  .5. 


TREATY-MAKING    POWER  O 

purposes  of  the  treaty  and  some  of  the  circumstances 
of  its  negotiation  concluded: 

I  now  lay  before  you  the  original,  by  the  hands  of 
Mr.  Jay,  for  your  consideration  and  advice.  The  pap(^rs 
relative  to  this  negotiation  are  in  his  custody,  and  he 
has  my  orders  to  communicate  to  you  whatever  official 
papers  and  information  on  the  subject  he  may  possess 
and  you  may  require. 

When  received,  the  President's  message  was 
simply  read  and  ordered  to  lie  for  consideration.^ 
The  Senate  evidently  desired  to  proceed  in  this  new 
business  with  the  care  and  caution  commensurate 
with  its  importance,  for  on  the  following  day  the 
message  was  again  read  before  an  order  was  adopted, 
''That  Mr.  Jay  furnish  the  Senate  with  an  accurate 
translation  of  the  Consular  Convention  between  His 
Most  Christian  Majesty  and  the  United  States,  and 
a  copy  thereof  for  each  member  of  the  Senate."  - 
On  the  seventeenth  the  Senate  sought  further  to 
assure  itselt  of  the  accuracy  of  this  translation  by 
adopting  an  order  that  Jay  examine  it  and  report  his 
opinion  of  its  fidelity.  It  also  sought  further  infor- 
mation by  asking  the  Secretary  to  lay  before  it  all 
the  papers  in  his  custody  relative  to  the  negotiation, 
and  whatever  official  papers  and  information  on  the 
subject  he  might  possess.^  Four  days  later  Jay  was 
requested  "to  attend  the  Senate  to-morrow,  at  12 
o'clock,  and  to  bring  with  hmi  such  papers  as  are 
requisite  to  give  full  information,  relative"  to  the 
convention.  Accordingly  on  the  twenty-second  the 
Secretary  "made  the  necessary  explanations,"  after 

'  Sen.  Exec.  Jour.,  I.  5.         ^  Sen.  Exec.  Jour.,  I.  (3.         ^  Ibid. 


6  THE    SENATE    AND   TREATIES 

which  he  was  asked  to  give  his  opinion  as  to  how  far 
he  conceived  the  faith  of  the  United  States  to  be  en- 
gaged to  ratify  the  convention  in  its  existing  ''sense 
or  form."  On  the  following  Monday,  this  opinion 
was  presented  in  writing.  Jay  considered  in  detail 
the  circumstances  in  which  the  treaty  had  been 
negotiated,  and  ended  with  the  conclusion  that  it 
should  be  ratified  by  the  United  States.  Two  days 
later  the  Senate  unanimously  consented  to  the  con- 
vention and  advised  the  President  to  ratify  it.^ 

This  direct  and  personal  intercourse  between  the 
executive  and  the  Senate  is  an  indication  of  the 
fueling  which  seems  to  have  been  prevalent  that 
the  latter  really  was  a  council  of  advice  upon  treaties 
and  appointments  —  a  council  which  expected  to 
discuss  these  matters  directly  with  the  other  branch 
of  the  government.  There  is  much  evidence  to 
support  this  view  and  also  the  ■  conclusion  that 
the  practice  of  personal  consultation  failed  to  be- 
come firmly  established  largely  because  it  proved 
to  be  an  inconvenient  and  impracticable  method  of 
transacting  business.  For  its  knowledge  of  treaties 
the  Senate  came  to  depend,  even  during  Washington's 
administrations,  upon  documents  submitted  rather 
than  upon  verbal  reports.  In  the  consideration  of 
the  French  consular  convention  both  means  were 
used. 

A  second  point  of  interest  offered  by  this  con- 
vention is  to  be  found  in  the  motives  which  led  the 
Senate  to  advise  and  consent  to  its  ratification. 
On  July  22,  after  Jay  had  personally  explahied  the 

•  .Sen.  Exec.  Jour.,  I.  7,  8,  9;  see  Moore,  International  Law  Di- 
gest, V.  587,  for  brief  statement. 


TREATY-MAKING    POWER  / 

status  of  the  convention,  the  Senate  formally  pro- 
posed this  question  to  him: 

Whereas  a  convention  referred  this  day  to  the  Senate, 
bears  reference  to  a  convention  pending  between  the  most 
Christian  King  and  the  Ignited  States,  previous  to  the 
adoption  of  our  present  Constitution  — 

Resolved,  That  the  Secretary  of  Foreign  Affairs,  \uider 
the  former  Congress,  be  requested  to  peruse  the  said 
Convention,  and  to  give  his  opinion  how  far  he  conceives 
the  faith  of  the  United  States  to  be  engaged,  either  by 
former  agreed  stipulations,  or  negotiations  entered  into 
by  our  Minister  at  the  Court  of  Versailles,  to  ratify,  in 
its  present  sense  or  form-,  the  Convention  now  referred  to 
the  Senate.^ 

In  the  written  reply  which  he  handed  to  the 
Senate  five  days  later  Jay  recommended  ratifica- 
tion. This  recommendation  seems  to  have  been 
based  upon  two  grounds:  first,  the  general  prin- 
ciple that  a  government  was  bound  to  ratify  a 
treaty  concluded  by  its  minister  acting  in  accordance 
with  his  instructions;  second,  that  the  Continental 
Congress  k^d  specifically  promised  to  ratify  this 
particular  convention  under  certain  conditions, 
which  conditions  had  been  met  by  France. 

The  report  states  that  in  the  opinion  of  the 
Secretary : 

There  exist,  in  the  convention  of  1788,  no  variations 
from  the  original  scheme  sent  to  Dr.  Franklin  in  1782, 
nor  from  the  convention  of  1784,  but  such  as  render  it 
less  ineligible  than  either  of  the  other  two. 

That,  ahhough  he  apprehends  that  this  convention  will 

prove  more  inconvenient  than  beneficial  to  the  United 

States,  yet  he  thinks  that  the  circumstances  under  which  it 

was  formed  render  its  being  ratified  by  them  indispensable. 

»  Sen.  Exec.  Jour.,  I.  7. 


8  THE    SENATE    AND    TREATIES" 

The  circumstances  alluded  to,  are  these: 

The  original  scheme  of  1782,  however  exceptionable, 
was  framed  and  agreed  to  by  Congress. 

The  convention  of  1784  was  modeled  by  that  scheme, 
but  in  certain  instances  deviated  from  it;  but  both  of 
them  were  to  be  perpetual  in  their  duration. 

On  account  of  these  deviations,  Congress  refused  to 
ratify  it,  but  promised  to  ratify  one  corresponding  with 
the  scheme,  provided  its  duration  was  limited  to  eight 
or  ten  years;    but  they  afterwards  extended  it  to  twelve. 

Jay  then  cited  a  paragraph  from  the  instruc- 
tions sent  to  Jefferson  in  1786,  and  quoted  a  letter 
accompanying  them  in  which  the  Congress  clearly 
recognized  its  obligation  to  ratify  a  treaty  made 
in  accordance  with  the  scheme  which,  through 
their  envoy,  they  had  proposed  to  France.  This 
recognition  was  in  the  following  words: 

"  The  original  scheme  of  the  convention  is  far  from  being 
unexceptionable,  but  a  former  Congress  having  agreed 
to  it,  it  would  be  improper  now  to  recede ;  and  therefore 
Congress  are  content  to  ratify  a  convention  made  con- 
formable to  that  scheme,  and  to  their  act  of  25th  January, 
1782,  provided  a  clause  limiting  its  duration  be  added." 

The  report  then  continues: 

On  the  27th  July,  1787,  Congress  gave  to  Mr.  Jefferson 
a  commission,  in  general  terms,  to  negotiate  and  conclude 
with  his  most  Christian  Majesty,  a  convention  for  regu- 
lating the  privileges,  &c.,  of  their  respective  Consuls. 

In  one  of  the  letters  then  written  him  is  this  paragraph: 

''Congress  confide  fully  in  your  talents  and  discre- 
tion, and  they  will  ratify  any  convention  that  is  not  liable 
to  more  objections  than  the  one  already,  in  part  concluded, 
provided  that  an  article,  limiting  its  duration  to  a  term 
not  exceeding  twelve  years  be  inserted." 


TREATY-MAKIXG    POWER  9 

As  the  convontion  in  question  is  free  fioni  several  ol)- 
jections  to  which  the  one  of  1784  was  Ha))le,  and  is,  in 
every  respect,  preferable  to  it,  and  as  it  contains  a  clause 
hniiting  its  duration  to  twelve  years,  it  seems  to  follow, 
as  of  necessary  consequence,  that  the  United  States  ought 
to  ratify  it.^ 

Considering  this  transaction  from  beginning  to 
end,  it  seems  evident  that  from  the  time  the  Con- 
tinental Congress  of  1782  gave  its  assent  to  a  plan 
for  a  convention,  which  its  agent  was  to  negotiate 
with  France,  until  the  final  act  of  ratification  in 
1789  the  government  of  the  United  States  had 
acted  in  accordance  with  the  principle  of  inter- 
national law,  that  except  under  extraordinary  cir- 
cumstances a  nation  was  bound  to  ratify  any  agree- 
ment which  it  had  instructed  its  representative  to 
make.-  That  the  Congress  of  the  Confederation 
felt  the  weight  of  this  obligation  is  conclusively 
demonstrated  by  its  instructions  and  letters  to 
Jefferson.  Later  because  of  the  promises  in  these 
letters  and  because  of  a  recognition  of  the  principle 
which  had  given  rise  to  them,  the  Secretary  of 
Foreign  Affairs  under  the  Constitution  informed  the 
Senate  that  in  his  opinion  the  faith  of  the  nation 
was  pledged  to  ratify  the  convention  which  ulti- 
mately had  been  concluded.  And  finally  the  Senate 
advised  ratification  in  accordance  with  this  opinion 
even  though  it  was  believed  that  the  nation  would 
be  the  loser  by  the  treaty  ratified. 

'  -Sen.  Exec.  Jour.,  I.  7-8. 

-  Moore,  I nternaiional  Law  Digest,  V.  184-202,  discusses  thor- 
oughly the  principle  involved,  quoting  Vattel  and  other  older  a3 
well  as  modern  American  and  Euroi)ean  authorities,  antl  the  opinions 
of  American  statesmen  on  the  subject.  See  also  Foster,  The  Practice 
of  Diplomacy,  Ch.  XIII. 


10  THE    SENATE    AND   TREATIES 

Yet  despite  the  scrupulous  observance  of  the  rule 
of  international  law  in  this  instance,  the  later  in- 
terpretation and  application  of  the  constitutional 
provision  which  divides  the  treaty-making  power  of 
the  United  States  between  the  President  and  the 
Senate  soon  impelled  the  new  state  to  demand  ex- 
emption from  the  ancient  principle.  As  long  as 
the  President  negotiated  treaties  actually  "by  and 
with  the  advice  and  consent  of  the  Senate"  the 
United  States  possessed  no  better  grounds  than  any 
other  nation  for  declining  to  ratify,  or  for  ratifying 
partially  and  conditionally,  agreements  signed  by 
its  plenipotentiaries.  But  when  the  sanction  of  the 
Senate  was  sought  only  after  negotiation  had  been 
completed,  it  became  necessary  for  this  country  to 
secure  the  right  of  rejection  or  amendment  if  the 
constitutional  powers  of  the  Senate  were  to  amount 
to  more  than  an  empty  form.  There  was,  then, 
an  intimate  relation  between  the  manner  in  which 
the  Senate  was  to  exercise  its  treaty-making  powers 
and  the  position  of  the  United  States  with  reference 
to  the  principle  of  international  law  involved.  The 
ratification  of  the  French  consular  convention  il- 
lustrates the  position  of  the  Senate  at  the  outset. 


CHAPTER   II 

Development  of  Treaty-making  Power 

THROUGH  Action  on  Treaties  with 

Indian  Tribes,  1789-1795 

During  the  early  nineties  the  Senate  played  an 
active  part  in  negotiations  which  were  in  progress 
between  the  United  States  and  Great  Britain, 
Algiers,  and  France.  None  of  the  resulting  treaties 
came  before  it  for  final  action,  however,  until  1795, 
while  in  the  meantime  the  treaty-making  power  was 
being  vigorously  exercised  in  concluding  agreements 
between  the  United  States  and  various  Indian 
tribes.^ 

treaties  of  fort  harmar 

The  first  of  these  agreements  were  the  two  treaties 
of  Fort  Hawnar  submitted  to  the  Senate  on  May  25, 
1789.  The  consideration  of  the  problems  which  arose 
in  connection  with  these  treaties  occupied  the  at- 
tention of  the  Senate  at  intervals  throughout  prac- 
tically all  of  the  first  session  of  Congress,  and  in  the 
end  it  withheld  its  advice  and  consent  to  the  rati- 
fication of  one  of  them.     In  the  meantime,  however, 

1  Butler,  The  Treaty-Making  Power  of  the  United  Slater,  II.  203, 
and  Ch.  XIV,  jjassim,  discusses  treaties  with  Indian  tribes;  also 
Burr,  The  Treaty-Making  Powe)-  of  the  United  States,  pp.  383-384, 
considers  the  constitutional  and  legal  status  of  treaties  with  Indian 
tribes. 

11 


12  THE    SENATE    AND    TREATIES 

one  question  had  been  definitely  decided  —  namely, 
that  the  advice  and  consent  of  the  Senate  should 
be  given  to  the  ratification  of  treaties  with  Indian 
tribes  in  the  same  form  as  to  treaties  with  foreign 
nations.  The  circumstances  in  which  this  decision 
was  reached  reveal  how  both  the  President  and  the 
Senate  were  feeling  their  way  carefully  and  thought- 
fully in  the  determination  of  the  technique  of  treaty- 
making. 

The  papers  which  General  Knox,  under  whose 
superintendence  the  business  had  been  transacted, 
laid  before  the  Senate  included  his  report  to  the 
President,  explaining  the  circumstances  under 
which  the  treaties  had  been  negotiated  and  signed. 
In  this  report  the  Secretary  suggested  the  necessity, 
on  constitutional  grounds,  of  an  explanation  of  the 
reservation  in  the  treaty  with  the  Six  Nations  of 
six  square  miles  around  the  Fort  at  Oswego,  which 
reservation  was  within  the  territory  of  the  State 
of  New  York.  He  concluded  by  observing,  "That, 
if  this  explanation  should  be  made,  and  the  Senate 
of  the  United  States  should  concur  in  their  approba- 
tion of  the  said  treaties,  it  might  be  proper  that  the 
same  should  be  ratified  and  published,  with  a 
proclamation  enjoining  the  observance  thereof." 
Two  documents  accompanied  the  report,  No.  1 
being  a  representation  to  the  old  Congress  against 
the  treaties  superseded,  while  No.  2  was  a  copy  of 
the  instructions  under  which  the  new  treaties  were 
negotiated.^ 

It  was  not  until  June  12  that  the  Senate  found 
time  to  turn  its  attention  to  these  treaties.     On 

'  Sen.  Exec.  Jour.,  I.  3-5. 


DEVELOPMENT    OF    TREATY-MAKING    POWER  13 

that  day  they  were  considered  and  put  in  charge 
of  a  committee  of  three,  Few,  Read,  and  Henry. ^ 
Two  months  later  the  committee  reported :  ^ 

That  the  Governor  of  the  Western  Territory,  on  the 
9th  day  of  January,  1789,  at  Fort  Harmar,  entered  into 
two  treaties,  one  with  the  sachems  and  warriors  of  the 
Six  Nations,  the  Mohawks  excepted,  the  other  with  the 
sachems  and  warriors  of  the  Wyandot,  Delaware,  Ottawa, 
Chippewa,  Pattawattima,  and  Sacs  nations  —  that  those 
treaties  were  made  in  pursuance  of  the  powers  and  in- 
structions heretofore  given  to  the  said  Governor  by  the 
late  Congress,  and  are  a  confirmation  of  the  Treaties  of 
Ft.  Stanwix,  in  October,  1784,  and  of  Ft.  Mcintosh,  in 
January,  1785,  and  contain  a  more  formal  and  regular 
conveyance  to  the  United  States  of  the  Indian  claims  to 
the  lands  yielded  to  these  States  by  the  said  treaties  of 
1784  and  1785. 

Your  Committee,  therefore,  submit  the  following  reso- 
lution, viz: 

That  the  treaties  concluded  at  Ft.  Harmar,  on  the 
9th  day  of  January,  1789  between  Arthur  St.  Clair,  Esq., 
Governor  of  the  Western  Territory,  on  the  part  of  the 
United  States,  and  the  sachems  and  warriors  of  the  Six 
Nations,  (the  jVIohawks  excepted,)  .  .  .  and  the  sachems 
and  warriors  of  the  Wyandot  .  .  .  and  Sacs  nations,  be 
accepted;  and  that  the  President  of  the  United  States 
be  advised  to  execute  and  enjoin  an  observance  of  the 
same.' 

Seemingly  the  committee  felt  it  to  be  a  most 
important  part  of  its  duty  to  determine  whether 
the  treaties  referred  to  it  were  in  accord  with  the 
instructions  under  which  they  were  negotiated,  a 
feeling  shared  by  most  of  the  early  committees  on 
treaties.  And  it  thought  proper,  also,  to  follow 
closely,  in  the  form  of  the  resolution,  the  lead  given 

1  Sen.  Exec.  Jour.,  I.  6.  =  Ibid.,  p.  17.  '  Ibid.,  p.  24. 


14  THE    SENATE    AND   TREATIES 

in  the  last  clause  of  General  Knox's  report  to  the 
President. 

After  consideration  this  report  was  allowed  to  lie 
over  until  September  8,  when  a  resolution  was 
adopted  advising  the  President  "to  execute  and 
enjoin  an  observance  of"  the  treaty  with  the  Wyan- 
dots  and  other  tribes.  No  mention  was  made  in 
the  resolution  of  the  treaty  with  the  Six  Nations, 
although  it  is  recorded  in  the  journal  that  both 
were  considered.^  The  reason  for  the  failure  of  the 
Senate  to  act  on  this  treaty  soon  appeared. 

An  attested  copy  of  the  resolution  adopted  having 
been  laid  before  the  President,  the  Senate  soon  re- 
ceived a  further  communication  from  him  on  the 
subject,  again  delivered  by  General  Knox,  who 
meanwhile  had  been  appointed  the  first  Secretary 
of  War  under  the  new  government.^  In  this  mes- 
sage Washington  expressed  the  opinion  that  treaties 
with  Indian  tribes  should  be  ratified  under  the 
same  procedure  as  was  intended  to  be  followed  with 
reference  to  foreign  treaties,  although  it  is  clear  that 
he  did  not  think  that  such  ratification  was  required 
by  the  Constitution.  He  put  the  matter  squarely 
up  to  the  Senate,  however,  in  these  words:  ''It 
strikes  me  that  this  point  should  be  well  considered 
and  settled,  so  that  our  national  proceedings,  in 
this  respect,  may  become  uniform,  and  be  du-ected 
by  fixed  and  stable  principles."  Following  this 
general  statement  is  a  paragraph  which  reveals  how 
in  the  original  submission  he  had  intentionally  left 
to  the  Senate  a  free  field  in  suggestmg  the  procedure 
to  be  followed.     Washington  said: 

1  Sen.  Exec.  Jour.,  I.  25.  -  Ibid.,  pp.  26,  27. 


DEVELOPMENT   OF   TREATY-MAKING    POWER         15 

The  treaties  with  certain  Indian  Nations,  which  were 
laid  before  you  with  my  message  of  the  2oth  of  May 
last,  suggested  two  questions  to  mj^  mind,  viz:  1st, 
Whether  those  treaties  were  to  be  considered  as  perfected, 
and  consequently  as  obligatory,  without  being  ratified? 
If  not,  then  2dly,  Wh(^ther  both,  or  either,  and  which  of 
them,  ought  to  be  ratified?  On  these  questions  I  request 
your  opinion  and  advice.' 

The  Senate  committed  this  message  to  another 
concmiittee  of  three  members,  Carroll,  King,  and 
Read.- 

In  its  report,  presented  next  day,  this  committee 
expressed  the  opinion  that,  in  view  of  the  fact  that 
m  the  past  Indian  treaties  had  been  considered  as 
fully  completed  upon  signature  and  without  solemn 
ratification,  the  formal  ratification  of  the  treaty 
with  the  Wyandots  and  other  Indian  nations  was 
not  expedient  or  necessary;  and  accordingly'  that 
the  resolution  of  the  Senate  of  September  8  was  all 
that  was  required  in  the  case,  since  it  authorized 
the  President  to  ''enjoin  a  due  observance"  of  the 
t^eat3^  The  committee  further  reported  that  as  to 
the  treaty  with  the  Six  Nations,  "from  particular 
circumstances  affecting  the  ceded  lands,  the  Senate 
did  not  ju4ge  it  expedient  to  pass  any  act  concerning 
the  same."  ^ 

This  report,  however,  proved  to  be  unacceptable 
to  the  majority  of  the  Senate  and  in  the  end  Wash- 
ington's suggestion  as  to  formal  ratification  was 
adopted.  On  the  following  Tuesday,  September  22, 
a  resolution  was  passed  ratifying  in  form  the  treaty 
with  the  Wyandots  et  aL;  but  in  the  case  of  the 
treaty  with  the  Six  Nations  the  Senate  declined  to 

1  Sell.  Exec.  Jour.,  I.  27.  ^  Ibid.         '  Ibid.,  pp.  27,  28. 


16  THE  SENATE  AND  TREATIES 

accept  any  responsibility  either  of  a  positive  or 
of  a  negative  sort.  As  the  journal  puts  it,  "And 
it  being  suggested  that  the  treaty  concluded  at 
Fort  Harmar  .  .  .  may  be  construed  to  prejudice 
the  clauns  of  the  States  of  Massachusetts  and  New 
York,  and  of  the  grantees  under  the  said  states  re- 
spectively. Ordered,  That  the  consideration  thereof 
be  postponed  until  next  session  of  Senate."  ^  The 
Senate  evidently  continued  to  deem  it  inexpedient 
to  act  in  this  delicate  matter,  for  no  record  of  any 
further  consideration  appears  in  the  journals  of  the 
next  or  of  subsequent  sessions. 

Thus  by  a  process  of  give  and  take  the  Senate  and 
the  executive  worked  out  the  problems  imposed  by 
their  joint  functions.  The  direct  and  personal  con- 
tact which  still  marked  then-  relations  in  treaty- 
making  is  illustrated  by  the  appearance  before  the 
Senate  of  General  Knox  as  the  head  of  the  executive 
department  concerned. 

TREATY   WITH    THE    CREEK    INDIANS,    1789 

Coincidently  with  the  discussion  over  the  rati- 
fication of  the  Fort  Harmar  treaties  arose  the 
question  of  the  proper  role  of  the  Senate  in  the 
negotiation  of  such  agreements  and  of  foreign 
treaties.  Very  probably  the  early  Senators  ex- 
amined the  treaty  clause  itself  to  see  what  light  it 
might  throw  upon  this  question.  This  clause  ap- 
pears in  the  Constitution  as  follows:  ''He  [the 
President]  shall  have  power,  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  to  make  treaties, 

'  Ibid.,  p.  28. 


DEVELOPMENT    OF    TREATY-MAKING    POWER  17 

provided  two-thirds  of  the  Senators  present  concur; 
and  he  shall  nominate,  and  by  and  with  the  advice 
and  consent  of  the  Senate,  shall  appoint  ambas- 
sadors," etc. 

Senator  Henry  Cabot  Lodge,  in  our  own  day, 
has  quoted  the  provision  in  regard  to  nominations 
and  appointments,  in  order  to  define  more  fully 
the  preceding  one  relating  to  treaties.^  And  he 
points  out  that  it  is 

well  to  note  that  the  carefully  phrased  section  gives  the 
President  absolute  and  unrestricted  right  to  nominate, 
and  the  Senate  can  onh'  advise  and  consent  to  the  ap- 
pointment of,  a  gi\^en  person.  All  right  to  interfere  in 
the  remotest  degree  with  the  power  of  nomination  and 
the  consequent  power  of  selection  is  wholly  taken  from 
the  Senate.  \'ery  different  is  the  wording  of  the  treaty 
clause.  There  the  words  "by  and  with  the  advice  and 
consent  of"  come  in  after  the  words  "shall  have  power" 
and  before  the  power  referred  to  is  defined.  The  "  advice 
and  consent  of  the  Senate"  are  therefore  coextensive 
with  the  "  power "  conferred  on  the  President,  which  is 
"to  make  treaties,"  and  apply  to  the  entire  process  of 
treaty-making. 

Senator  Lodge  concludes  that  except  for  their  want 
of  authority,  to  send  or  to  receive  ambassadors  or 
mmisters  and  their  consequent  inability  to  in- 
itiate a  negotiation  the  Senate,  under  the  language 
of  the  Constitution  and  in  the  intent  of  the  framers, 
stands  on  a  perfect  equality  with  the  President  in 
the  making  of  treaties.  That  this  was  the  opinion 
of  the  first  executive  and  of  the  early  Senates  is 
clearly   disclosed  in  their  handling  of   Indian   and 

'  Lodge,  "The  Treaty-Making  Powers  of  the  Senate,"  in  A 
Fighting  Frigate  and  Other  Essays  and  Addresses,  pp.  231-232. 


18  THE    SENATE    AND    TREATIES 

foreign  affairs,  which  also  reveals  the  reasons  why 
the  Senate  soon  ceased  to  participate  directly  in 
treaty-making  during  the  period  of  negotiation. 

It  being  then  generally  assumed,  however,  that 
the  President  would  at  times  discuss  personally 
with  the  Senate  the  subjects  of  nominations  to 
office  and  of  treaties,  the  question  as  to  where 
and  how,  and  incidentally  whether,  these  consulta- 
tions should  take  place  soon  came  up  for  decision. 
To  this  end,  early  in  August,  1789,  Senators  Izard, 
King,  and  Carroll  were  appointed  as  a  committee, 
^'to  wait  upon  the  President  of  the  United  States 
and  confer  with  him  on  the  mode  of  communication 
proper  to  be  pursued  between  him  and  the  Senate, 
in  the  formation  of  treaties,  and  making  appoint- 
ments to  offices."  ^ 

Two  days  after  their  appointment,  August  8, 
these  gentlemen  conferred  with  the  President,  and 
on  the  tenth  they  held  a  second  meeting  at  which 
his  sentiments  were  finally  expressed."^  Washington 
evidently  felt  that  nominations  should  be  made 
by  written  messages,  but  that  personal  conferences 
were  preferable  in  forming  treaties.  In  the  memo- 
randum of  his  sentiments  as  expressed  at  the  con- 
ference of  August  8  he  is  recorded  as  having  taken 
the  position  that, 

In  all  matters  respecting  Treaties,  oral  communications 
seem  indispensably  necessary;  because  in  these  a  variety 
of  matters  are  contained,  all  of  which  not  only  require 
consideration,  but  some  of  them  may  undergo  much  dis- 

'  Sen.  Exec.  Jour.,  I.  12,  IG. 

2  Washington  to  Madison,  Aug.  9,  1789,  Washington's  Writings 
(Ford  ed.),  XI.  415;    Notes  on  conferences,  Ibid.,  417-419. 


DEVELOPMENT    OF   TREATY-MAKINC    POWER  19 

cussion;  to  do  which  by  written  coinnmnications  would 
bo  te(hoiis  witliout   iK'inji  satisfactory.' 

And  at  the  second  conference  he  is  reported  to  have 
stated  his  opinion  as  to  the  proper  relations  between 
the  President  and  the  Senate  in  treaty  matters  in 
these  words: 

Tlie  President  has  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties  and  to  appoint 
officers. 

The  Senate,  when  this  power  is  exercised,  is  evidently 
a  council  only  to  the  President,  however  its  concurrence 
may  be  to  his  acts.  ...  In  the  appointment  to  offices, 
the  agency  of  the  Senate  is  pureh-  executive,  and  they 
may  be  summoned  to  the  President.  In  treaties,  the 
agency  is  perhaps  as  much  of  a  legislative  nature,  and  the 
business  may  possibly  l^e  i-eferred  to  their  deliberations 
in  their  legislative  chamljer.  The  occasion  for  this  dis- 
tinction will  be  lessened  if  not  destroyed,  when  a  chamber 
shall  be  appropriated  for  the  joint  business  of  the  Presi- 
dent and  the  Senate.- 

With  reference  to  the  manner  of  consultation  the 
President  observed, 

In  other  cases,  again,  as  in  treaties  of  a  complicated  nature, 
it  may  happen,  that  he  will  send  his  propositions  in  wn-it- 
ing,  and  consult  the  Senate  in  person  after  time  shall 
have  been  allowed  for  consideration. 

And  finally,  because  any  hard  and  fast  rule  of  pro- 
cedure would  be  very  likely  to  prove  unfortunate, 
he  recommended  that 

the  Senate  should  accomodate  their  rules  to  the  uncer- 
tainty of  the  particular  mode  and  place,  that  may  be 

'  Washington  to  Madison,  Aug.  9,  17S9,  Washington's  Writings 
(Ford  od.),  XI.  415;   Notes  on  conferences,  Ibul.,  417-419. 

2  Ibul. 


20  THE  SENATE  AND  TREATIES 

preferred,  providing  for  the  reception  of  either  oral  or 
written  propositions,  and  for  giving  their  consent  and 
advice  in  either  the  presence  or  absence  of  the  President, 
leaving  him  free  to  use  the  mode  and  place,  that  may  be 
found  most  eligible  and  accordant  with  other  business, 
which  may  be  before  him  at  the  time.^ 

The  views  of  the  President  evidently  were  con- 
curred in  by  the  committee,  for  its  report,  presented 
and  adopted  August  21,  made  provision  for  meetings 
of  the  Senate  and  the  President  under  procedure 
acceptable  to  both  of  them,  but  left  it  to  the  Presi- 
dent to  decide  in  each  particular  case  whether  the 
business  should  be  transacted  orally  or  by  written 
messages."^ 

The  judgment  of  the  President  and  of  the  vSenate 
as  to  the  desirability  and  practicability  of  personal 
conferences  upon  treaties  was  soon  to  be  put  to 
the   test   of  practical   application.     The   very   day 

1  Wasliington  to  Madison,  Aug.  9,  1789,  Washington's  Writings 
(Ford  ed.),  XI.  415;   Notes  on  conferences,  Ibid.,  417-419. 

-  This  report  was  adopted  in  the  following  form:  "Resolved, 
That  when  nominations  shall  be  made  in  writing  by  the  President 
of  the  United  States  to  the  Senate,  a  future  day  shall  be  assigned, 
unless  the  Senate  unanimously  direct  otherwise,  for  taking  them  into 
consideration.  That  when  the  President  of  the  United  States 
shall  meet  the  Senate  in  the  Senate  Chamber,  the  President  of  the 
Senate  shall  have  a  chair  on  the  floor,  be  considered  as  the  head 
of  the  Senate,  and  his  chair  shall  be  assigned  to  the  President  of 
the  United  States.  That  when  the  Senate  shall  be  convened  by 
the  President  of  the  United  States  to  any  other  place,  the  President 
of  the  Senate  and  Senators  shall  attend  at  the  place  appointed. 
The  Secretary  of  the  Senate  shall  also  attend  to  take  the  minutes 
of  the  Senate. 

"That  all  questions  shall  be  put  by  the  President  of  the  Senate, 
either  in  the  presence  or  the  absence  of  the  President  of  the  United 
States;  and  the  Senators  shall  signify  their  assent  or  dissent  by 
answering,  viva  v'oce,  ay  or  no."     Sen.  Exec.  Jour.,  I.  19. 


DEVELOPMENT   OF   TREATY-MAKING    POWER         21 

upon  which  the  rule  of  procedure  was  adopted  the 
Senate  recei\'ed  the  following  communication  from 
Washington,  delivered  by  Tobias  Lear,  his  private 
secretary : 

Gentlemen  of  the  Senate:  The  President  of  the  United 
States  will  meet  the  Senate,  in  the  Senate  Chaml)er,  at 
half  past  eleven  o'clock,  tomorrow,  to  advise  with  them 
on  the  terms  of  a  treaty  to  be  negotiated  with  the  Southern 
Indians.^ 

The  general  problem  which  Washington  sought  to 
solve  by  a  treaty  already  was  well  known  to  the 
Senate,  and,  indeed,  to  members  of  both  houses, 
and  to  the  country.  Two  weeks  previously  he  had 
laid  before  the  Senate  the  facts  concerning  the  dis- 
putes between  Georgia  and  other  states  and  certain 
powerful  tribes  of  Indians  within  the  limits  of  the 
Union,  and  had  pointed  out  the  necessity  for  the 
interposition  of  the  general  govermnent  between  the 
disputants.  He  had  also  suggested  that  if  it  should 
be  the  judgment  of  Congress  that  a  treaty  should 
be  made  with  the  Southern  Indians,  it  might  be 
expedient  to  institute  a  temporary  commission  of 
three  persons,  for  that  purpose,  whose  authority 
should  ej^ire  with  the  occasion.^  Congress  had 
responded  by  providmg  for  the  expenses  of  the 
proposed  negotiations,^  and  on  August  21  the  ap- 
pointment of  the  three  commissioners  had  been 
confirmed.^ 

*  Richardson,  Compilation  of  the  Messages  and  Papers  of  the 
Presidents,  I.  61.  Phillips,  Georgia  and  States  Rights,  Ch.  II,  dis- 
cusses the  negotiation,  ratification  and  political  as|)ects  of  this 
treaty. 

2  Annals  of  Congress,  1789-1791,  I.  59-60.  '  Ibid.,  p.  65. 

*  Sen.  Exec.  Jour.,  I.  19. 


22  THE    SENATE   AND   TREATIES 

From  the  standpoint  of  this  study  the  interest  of 
the  two  conferences  which  followed  between  the 
President  and  his  constitutional  advisers  does  not 
lie  in  the  measures  which  they  agreed  should  be 
taken  to  solve  the  problem  of  the  moment.  In 
their  effect  upon  the  treaty-making  powers  of  the 
Senate,  the  meetings  are  of  importance  because  they 
were  so  uncomfortable  to  both  parties  that  Wash- 
ington never  again  personally  consulted  with  the 
Senate  about  treaties,  or,  indeed,  upon  any  other 
subject  —  an  example  which  has  been  followed  by 
every  one  of  his  successors.^ 

After  explaining  the  points  at  issue  between  Georgia 
and  North  Carolina  and  the  Indian  tribes,  and  em- 
phasizing the  importance  to  those  states  and  to  the 
union  of  effecting  a  speedy  settlement  of  the  diffi- 
culty, the  President  asked  the  advice  of  the  Senate 
upon  the  instructions  to  be  given  to  the  commis- 
sioners of  the  United  States.  This  he  did  by  sub- 
mitting seven  propositions  prefaced  by  these  words: 

As  it  is  necessary  that  certain  principles  should  be 
fixed,  previously  to  forming  instructions  for  the  Com- 
missioners, the  following  questions,  arising  out  of  the 
foregoing  communications,  are  stated  by  the  President 
of  the  United  States,  and  the  advice  of  the  Senate  re- 
quested thereon. 

Then  followed  the  seven  specific  questions,  cover- 
ing the  entire  instructions  to  the  commissioners 
and  designed  to  secure  the  advice  of  the  Senate 
upon  what  action  should  be  taken  by  them  in  every 
alternative  that  might  arise  during  the  negotiation. 

1  The  appearaiK-e  of  President  Wilson  before  the  Senate,  July  10, 
1919,  was  not  for  consultation. 


DEVELOPMENT   OF   TREATY-MAKING    POWER  23 

The  questions  were  taken  up  seriatim  and  discussed 
by  the  Senators,  the  President,  and  Cleneral  Knox. 
Some  of  the  propositions  were  assented  to  or  dis- 
sented from  as  they  had  been  presented,  while 
others  were  modified.  The  proceeding  took  the 
gi'eater  part  of  two  legislative  days,  but  finally  the 
''  advice  and  consent"  of  the  Senate  had  been  given 
to  a  course  of  action  intended  to  cover  all  possible 
contingencies.^  The  instructions  later  issued  to  the 
commissioners  conform  strictly  to  this  advice. - 

There  is  little  in  the  pages  of  the  Senate  Executive 
Journal  to  indicate  that  this  method  of  procedure 
was  not  satisfactory  to  all  parties  concerned.  For- 
tunately, however,  we  are  permitted  a  more  intimate 
view  of  these  conferences  in  the  familiar  diary  of 
Senator  Maclay,^  a  view  which  makes  it  seem  very 
Ukely  that  Washington  did  say  when  he  left  the 
Senate  chamber  that  he  would  "  be  damned  "if  he 
ever  came  there  again.^ 

1  .Sen.  Exec.  Jour.,  I.  20-24. 

'  American  State  Papers,  Indian  Affairs,  I.  65-68. 

'  Journal  of  William  Maclay,  pp.  128-133. 

*  This  story,  which  John  Quincy  Adams  recounts  in  his  diary, 
and  which  has  often  been  repeated,  is  as  follows:  "Mr.  Crawford 
told  twice  oveif  the  story  of  President  Washington's  having  at  an 
early  period  of  his  administration  gone  to  the  Senate  with  a  project 
of  a  treaty  to  be  negotiated  and  been  present  at  their  deliberations 
upon  it.  They  debated  it  and  proposed  alterations,  so  that  when 
Washington  left  the  Senate  Chamber  he  said  he  would  be  damned  if 
he  ever  went  there  again.  And  ever  since  that  time  treaties  have 
been  negotiated  by  the  Executive  before  submitting  them  to  the 
consideration  of  the  Senate. 

"The  President  said  he  had  come  into  the  Senate  about  eighteen 
months  after  the  first  organization  of  the  present  Government, 
and  then  heard  that  something  like  this  had  occurred. 

"  Crawford  then  repeated  the  story,  varying  the  words,  so  as  to 


24  THE  SENATE  AND  TREATIES 

It  is  evident  from  Maclay's  account  that  con- 
straint and  tension  marked  the  conferences  from 
beginning  to  end.  The  entire  proceeding  must 
have  been  felt  to  be  unnatural,  forced,  and  un- 
satisfactory. Maclay's  own  words  graphically  de- 
scribe what  occurred:  ^ . 

Senate  met,  and  went  on  the  Coasting  bill.  The 
doorkeeper  soon  told  us  of  the  arrival  of  the  President. 
The  President  was  introduced,  and  took  our  Vice-Presi- 
dent's chair.  He  rose  and  told  us  bluntly  that  he  had 
called  on  us  for  our  advice  and  consent  to  some  propo- 
sitions respecting  the  treaty  to  be  held  with  the  Southern 
Indians.  Said  he  had  brought  General  Knox  with  hmi, 
who  was  well  acquainted  with  the  business.  He  then 
turned  to  General  Knox,  who  was  seated  on  the  left  of 
the  chair.  General  Knox  handed  him  a  paper,  which  he 
handed  to  the  President  of  the  Senate,  who  was  seated  on 
a  chair  on  the  floor  to  his  right.  Our  Vice-President 
hurried  over  the  paper.  Carriages  were  driving  past, 
and  such  a  noise,  I  could  tell  it  was  something  about 
"Indians,"  but  was  not  master  of  one  sentence  of  it. 
Signs  were  made  to  the  doorkeeper  to  shut  down  the 
sashes.  Seven  heads,  as  we  have  since  learned,  were 
stated  at  the  end  of  the  paper  which  the  Senate  were  to 
give  their  advice  and  consent  to.  They  were  so  framed 
that  it  could  not  be  done  by  aye  or  no. 

The  President  told  us  that  a  paper  from  an  agent  of 
the  Cherokees  was  given  to  him  just  as  he  was  coming  to 
the  Hall.  He  motioned  to  General  Knox  for  it,  and 
handed  it  to  the  President  of  the  Senate.  It  was  read. 
It  complained  hard  of  the  unjust  treatment  of  the  people 

say  that  Washington  swore  he  would  never  go  to  the  Senate  again." 
Memoirs  of  John  Quincy  Adams,  VI.  427. 

It  is  evident  that  the  story  had  been  told  to  Crawford  by  Presi- 
dent Monroe.  This  was  not  the  last  treaty  that  was  submitted 
to  the  Senate  before  negotiation,  although  it  is  the  only  occasion 
on  which  such  submission  was  made  orally  by  the  President. 


DEVELOPMENT    OF   TREATY-MAKING    POWER         25 

of  North  Carolina,  etc.,  their  violation  of  treaties,  etc. 
Our  Vice-President  now  read  off  the  first  article,  to  which 
our  advice  antl  consent  were  requested.  It  referred  back 
jirincipally  to  sx)nie  statements  in  the  body  of  the  wiitiny; 
which  had  been  read. 

Mr.  Morris  rose.  Said  the  noise  of  carriages  had 
l)een  so  great  that  he  n^ally  could  not  say  that  he  had 
heard  the  body  of  the  paper  which  had  been  read,  and 
prayed  that  it  might  be  read  again.  It  was  so  [read]. 
It  was  no  sooner  read  than  our  Vice-President  immedi- 
ately read  the  first  head  over  again,  and  put  the  question : 
Do  you  advise  and  consent,  etc.?  There  was  a  dead 
pause.  Ml-.  Morris  whispered  to  me,  "We  will  see  who 
will  venture  to  break  silence  first."  Our  Vice-President 
was  proceeding,  "As  many  as — " 

I  rose  reluctantly,  indeed,  and,  from  the  length  of 
the  pause,  the  hint  givcni  by  Mr.  Morris,  and  the  pro- 
ceeding of  our  Vice-President,  it  appeared  to  me  that  if 
I  did  not  no  other  one  would,  and  we  should  have  these 
advices   and    consents   ravished,    in   a   degree,    from   us. 

Maclay  then  called  for  the  reading  of  the  treaties 
and  the  other  documents  referred  to  in  the  message 
of  the  President.  .  Whether  or  not  he  saw  onfy 
what  he  expected,  we  have  no  means  of  knowing. 
But  he  records  that  he  then  ''cast  an  eye  at  the 
President  of  the  United  States.  I  saw  he  wore  an 
aspect  of  ^ stern  displeasure."  Other  senators  par- 
ticipated in  the  discussion  and  called  for  the  reading 
of  particular  papers.  As  our  diarist  laconically  puts 
it,  ''The  business  labored  with  the  Senate."  The 
first  two  articles  were  postponed  and  a  long  dis- 
cussion over  the  merits  of  the  third  article  followed, 
in  which  Ellsworth,  Lee,  and  Izard  discoursed 
learnedly  until  Morris  "at  last  informed  the  dis- 
putants that  they  were  debating  a  subject  that  was 


26  THE    SENATE   AND    TREATIES 

actually  postponed."  This  statement  gave  rise  to  a 
parlimentary  wrangle  which  ended  in  repassing  the 
motion  to  postpone. 

At  this  point  Morris,  following  a  whispered  sug- 
gestion from  his  colleague,  rose  and  moved  that  all 
the  papers  be  committed.  More  debate  then  fol- 
lowed, in  which  Butler  made  his  pertinent  and  oft- 
quoted  statement  that  the  Senate  was  acting  as  a 
council,  and  that  no  council  ever  conmiitted  any- 
thing. Maclay  himself  concluded  the  debate  by 
what  must  have  been  a  stilted  and  pedantic  dis- 
sertation upon  the  advantages  of  doing  business  by 
committees.  This  apparently  brought  Washington 
to  his  feet  in  exasperation,  for  Maclay  states: 

As  I  sat  down,  the  President  of  the  United  States 
started  up  in  a  violent  fi-et.  "  This  defeats  every  purpose 
of  my  coming  here''  were  the  first  words  he  said.  He  then 
went  on  that  he  had  brought  his  Secretary  of  War  with 
him  to  give  every  necessary  information;  that  the  Secre- 
tary knew  all  about  the  business,  and  yet  he  was  delayed 
and  could  not  go  on  with  the  matter.  He  cooled,  how- 
ever, by  degrees. 

The  entry  in  the  diary  continues  to  describe  the 
whole  of  the  two  conferences.  But  this  is  enough, 
perhaps,  to  explain  why  Washington  changed  his 
mind  about  the  desirability  of  oral  communications 
where  treaties  were  concerned.  As  the  Senate  in- 
creased in  size  the  inherent  difficulties  of  personal 
consultation  became  greater,  and  for  this  and  other 
reasons  it  is  not  surprising  that  none  of  his  succes- 
sors has  ever  repeated  an  experiment  which  Wash- 
ington found  to  be  so  unpleasant. 


DEVELOPMENT    OF   TREATY-MAKING    POWER         27 

In  its  inception,  then,  the  Creek  treaty  (1)  indi- 
cates that  the  President  considered  it  at  least  de- 
sirable to  secure  in  advance  the  detailed  and  specific 
advice  of  the  Senate  as  to  the  instructions  under 
which  treaties  were  to  be  negotiated;  (2)  it  shows 
that  he  believed  personal  consultation  to  be  the 
most  advantageous  method  of  taking  this  advice; 
and  (3)  it  demonstrates  that  such  procedure  was 
found  to  be  unsatisfactory  both  to  the  President 
and  to  the  Senate. 

But  even  after  having  consulted  the  Senate  upon 
the  instructions  to  be  given  to  the  commissioners. 
Washington  did  not  take  the  whole  negotiation 
into  his  own  hands  and  ignore  the  Senate  until 
the  completed  treaty  was  laid  before  it.  Some 
four  months  later,  January  11,  1790,  he  coimnu- 
nicated  to  the  Senate  the  instructions  which  he  had 
given  to  the  commissioners  and  their  report  upon 
the  negotiation,  in  which  the  Creeks  had  refused 
to  conclude  a  treaty.^ 

In  the  following  summer  representatives  of  the 
Creek  Nation  came  to  New  York  for  further  nego- 
tiation, and  in  August  Washington  informed  the 
Senate  that  the  "adjustment  of  the  terms  of  the 
treaty   is   far   advanced.''  -     He   also   submitted    a 

1  Airiericah  State  Papers,  Indian  Affairs,   I.  59.     The  entry  in     V 
the  journal  of  the  Senate  is,   "Ordered,  That  the  communication 
from  the  President  of  the  United  States  be  deferred  for  consider- 
ation."    Sen.  Exec.  Jour.,  I.  36. 

Maclay,  however,  records  that  "a  considerable  part  of  the  day" 
was  spent  in  reading  the  proceedings  of  the  commissioners.  Journal 
of  William  Maclay,  pp.  174-5.  The  pai)ers  submitted  cover  twenty 
pages  in  the  folio  volume  —  some  48,000  words. 

2  Sen.  Exec.  Jour.,  I.  55-56. 


28  THE  SENATE  AND  TEEATIES 

proposed  secret  article  to  be  added  to  the  treaty 
for  the  purpose  of  transferring  the  trade  of  the 
Indians  from  English  and  Spanish  to  American 
control.     After  consideration  it  was, 

Resolved,  That  the  Senate  do  advise  and  consent  to 
the  execution  of  the  secret  article  referred  to  in  the  mes- 
sage, and  that  the  blank  in  said  article  be  filed  in  with 
the  words,  "the  President  of  the  United  States."  ^ 

On  August  6  the  Senate  was  informed  that  the 
negotiation  had  reached  the  point  where  the  busi- 
ness might  be  conducted  and  concluded  in  form. 
General  Knox  was  nominated  to  conclude  the  treaty 
and  the  nomination  was  at  once  confirmed.  On 
the  following  day  the  signed  treaty  was  transmitted 
with  a  message  explaining  its  salient  features  and 
offering  to  have  communicated  to  the  Senate  such 
papers,  documents,  and  information  concerning  it  as 
might  be  required.^ 

By  taking  their  advice  on  the  instructions  to  the 
commissioners,  by  informing  them  of  the  progress 
of  the  negotiation,  and  by  securing  their  formal 
advice  and  consent  to  the  secret  article,  the  Presi- 
dent would  seem  to  have  made  the  agreement  with 
the  Creeks  as  much  the  Senate's  treaty  as  his  own. 
Neither  party,  however,  seems  to  have  assumed  that 
the  advice  and  consent  which  the  Senate  had  given 
to  the  negotiation  of  the  treaty  in  accordance  with 
certain  definite  propositions  constituted  the  whole 
of  the  senatorial  assent  contemplated  by  the  Con- 
stitution. Article  XIV  of  the  treaty  specifically  pro- 
vides that,   ''This  treaty  shall  take  effect  and  be 

1  Se7i.  Exec.  Jour.,  I.  56.  «  Ibid.,  pp.  57-58. 


DEVELOPMENT    OF    TREATY-MAKING    POWER         29 

obligatory  on  tlio  contracting  parties,  as  soon  as 
tlie  same  shall  have  been  ratified  by  the  President 
of  the  United  States,  with  the  advice  and  consent 
of  the  Senate  of  the  United  States."  ^ 

The  message  of  the  President  and  the  treaty  were 
read  in  the  Senate  on  the  Saturday  upon  which 
they  were  received  and  it  was  then  ordered  that 
they  lie  for  consideration.  Upon  taking  the  matter 
up  the  following  ]\Ionday,  a  motion,  supported  by 
those  who  opposed  the  treaty,  to  refer  it  to  a  select 
conamittee  failed  by  an  eight  to  ten  yea  and  nay 
vote.- 

It  was  then  proposed: 

That,  on  the  final  question,  when  the  advice  and  con- 
sent of  the  Senate  is  requested,  any  member  shall  have  a 
right  to  enter  his  protest  or  dissent  on  the  journal,  with 
reasons  in  support  of  such  dissent;  provided  the  same  be 
offered  within  two  days  after  the  determination  on  such 
final  question. 

This  motion  failed,  fifteen  to  four.^ 

Three  days  later  the  treaty  was  again  taken  up 
and  by  a  yea  and  nay  vote  of  fifteen  to  four  the 
advice  and  consent  of  the  Senate  given  in  the  fol- 
lowing form: 

''Resolved,  (two  thirds  of  the  Senators  present 
concurring  therein,)  That  the  Senate  do  consent  to 
the  aforesaid  treaty,  and  do  advise  the  President  of 
the  United  States  to  ratify  the  same."  * 

'  Indian  Affairs,  Laws  and  Treaties,  II.  22,  Sen.  Doc,  vol.  35, 
no.  452,  ser.  no.  4254,  57th  Cong.,  1st  Sess. 

2  Sen.  Exec.  Jour.,  I.  59.  3  Ibid. 

*  Sen.  Exec.  Jour.,  I.  61,  62.  It  seems  to  have  been  merely  a 
comcidence  that  the  motion  to  allow  members  to  enter  upon  the 
journal  their  protests  or  dissents  from  the  aetion  of  the  Senate  in 


30  THE  SENATE  AND  TREATIES 


TREATY  WITH  THE  CHEROKEE  INDIANS 

On  the  day  before  the  final  action  of  the  Senate 
on  the  Creek  agreement  a  message  was  transmitted 
to  them  by  Washington  asking  their  advice  and 
consent  to  the  principal  terms  of  a  proposed  treaty 
to  settle  somewhat  similar  difficulties  which  had 
arisen  between  Georgia  and  the  Cherokees.  The 
United  States  was  involved  in  the  matter  as  a  result 
of  its  treaty  of  November,  1785,  with  this  tribe  of 
Indians.  The  President  recited  that  by  this  agree- 
ment, known  as  the  Treaty  of  Hopewell,  the  Chero- 
kees had  placed  themselves  under  the  protection  of 
the  United  States,  that  a  boundary  had  been  as- 
signed to  them,  and  that  the  whites  on  the  frontier 
had  openly  violated  this  boundary  by  settling  on 
the  Cherokee  lands,  and  had  ignored  the  proclama- 
tion of  the  Congress  of  1788  ordering  them  out.  In 
view  of  the  facts  Washington  felt  it  to  be  his  duty 
either  to  enforce  the  old  treaty  or  to  negotiate  a 
new  one.  He  therefore  stated  the  following  ques- 
tions and  requested  the  advice  of  the  Senate  thereon : 

1st.  Is  it  the  judgment  of  the  Senate  that  overtures 
shall  be  made  to  the  Cherokees  to  arrange  a  new  ])oundary 
so  as  to  embrace  the  settlements  made  by  the  white 
people  since  the  treaty  of  Hopewell,  in  November,  1785? 

giving  its  advice  and  consent  failed  by  the  same  vote  by  w  hich  the 
treaty  itself  passed.  Butler  of  South  Carohna  and  Gunn  of  Georgia 
voted  for  the  first  proposition,  and  against  the  resolution  of  advice 
and  consent.  But  Gunn's  colleague  Few,  who  also  opposed  the 
ratification  of  the  treaty,  voted  nay  on  the  motion  to  allow  dissent- 
ing opinions  to  be  recorded  in  the  journal.  Both  Izard  of  North 
Carolina  and  Lee  of  Virginia,  who  supported  the  latter  [)roposition, 
voted  in  favor  of  the  ratification  of  the  treaty. 


DEVELOPMENT    OF    TREATY-MAKING    POWER         31 

2d.     If  so,  shall  compensation,  to  the  amount  of  


dollars  annually,  or  of  dollars  in  p;ross,  l)o  made  to 

the  Ch(Mokees  for  the  land  they  shall  relinquish,  holding 
the  occupiers  of  the  land  accountable  to  the  United 
States  for  its  value? 

3d.  Shall  the  United  States  stipulate  solemnly  to 
guarantee  the  new  boundary  which  may  be  arranged?  ^ 

Two  differences  are  to  be  noticed  between  these 
questions  and  those  put  to  the  Senate  in  the  case 
of  the  Creek  treaty.  The  latter  were  propounded 
by  Washington  in  person;  the  former  were  pre- 
sented in  writing  by  the  President's  secretary  and 
nothing  was  said  about  either  Washington  or  Gen- 
eral Knox  attending  or  furnishing  any  information 
other  than  that  contained  in  the  message  itself. 
Also,  the  questions  are  of  a  more  general  nature,  and 
do  not  attempt  to  cover  the  various  alternatives 
which  might  be  expected  to  arise  in  the  negotiation. 
Further,  the  questions  were  answered  in  a  different 
manner,  the  Senate  discussing  the  whole  matter  at 
will  and  then  summing  up  its  conclusions  in  two 
brief  resolutions.  In  replying  to  the  first  of  the 
three  questions,  the  Senate  left  it  to  the  President 
either  to  cause  the  treaty  of  Hopewell  to  be  carried 
into  execution  or  to  enter  into  arrangements  with 
the  Cherokees  for  a  further  cession  of  territory. 
The  alternative  of  an  annual  payment  was  recom- 
mended, tKe  amount  being  limited  to  $1000,  and 
the  condition  was  laid  down  that  the  occupiers  of  the 
land  should  be  confirmed  in  possession  only  by 
a  compliance  with  such  terms  as  Congress  might 
afterwards  prescribe.     And,  finally,  it  was 

'■  Sen.  Exec.  Jour.,  I.  01. 


32  THE    SENATE    AND    TREATIES 

Resolved,  In  case  a  new,  or  other  boundary  than  that 
stipulated  by  the  treaty  of  Hopewell,  shall  be  concluded 
with  the  Cherokee  Indians,  that  the  Senate  do  advise 
and  consent  solemnly  to  guarantee  the  same.^ 

This  last  resolution  was  of  a  type  adopted  several 
times  by  the  Senate  during  the  early  administrations. 
Later  Senates  did  not  bind  themselves  thus  in  ad- 
vance, and  would  have  deemed  such  a  promise  in- 
compatible with  their  right  to  withhold  theu'  assent 
from  any  provision  of  a  treaty  submitted  to  them. 
What  would  have  been  the  position  of  the  Senate 
had  the  President  concluded  a  treaty  with  the 
Cherokees  creating  a  boundary  that  threatened  to 
bring  Georgia  into  serious  conflict  with  the  federal 
government?  How  far  would  it  have  held  itself 
to  be  bound  by  this  resolution,  —  particularly  if 
the  balance  of  power  had  passed  from  one  party  to 
the  other  in  the  interim?  These  questions  did  not 
then  arise,  but  it  is  inevitable  that  sooner  or  later 
some  such  situation  would  have  been  created  had 
this  practice  become  established.  The  resolution, 
however,  is  but  another  expression  of  the  general 
principle  which  governed  in  the  ratification  of  the 
French  consular  convention,  namely,  that  a  nation 
is  bound  to  accept  treaties  signed  by  its  plenipo- 
tentiaries, provided  the  latter  have  followed  their 
instructions.  It  will  be  perceived  that  at  this  time 
both  the  Senate  and  the  President  were  acting  in 
accordance  with  the  first  of  the  two  alternatives 
suggested  in  that  connection  —  that  is,  under  the 
theory  that  the  Senate  should  participate  in  deciding 
what  instructions  should  be  given  to  the  negotiator, 

1  Sen.  Exec.  Jour.,  I.  61. 


DEVELOPMENT    OF   TREATY-MAKING    POWER         33 

and  then  be  bound  to  the  same  extent  as  was  the 
President  to  ratify  the  resulting-  treaty. 

The  treaty  which  was  concluded  with  the  Chero- 
kees  in  accordance  with  the  advice  given  by  the 
Senate  on  August  11,  1790,  was  submitted  to  the 
Senate  more  than  a  year  later,  two  days  after  the 
meeting  of  the  first  session  of  the  second  Congress. 
With  it  were  transmitted  the  papers  which  related 
to  the  negotiations,  amounting  in  all  to  some  7000 
words. '  The  message,  treaty,  and  papers  were  read 
and  ordered  to  lie  for  consideration,-  and  a  week 
later  were  referred  to  a  committee  composed  of 
Hawkins,  Cabot,  and  Sherman.^  This  committee  re- 
ported, in  part,  as  follows: 

That  they  have  examined  the  said  treaty,  and  find  it 
strictly  confonnable  to  the  instructions  given  by  the 
President  of  the  United  States. 

That  these  instructions  were  founded  on  the  advice 
and  consent  of  the  Senate,  of  the  11th  of  August,  1790. 

That  the  stipulations  in  the  14th  article  are  similar 
to  those  gratuitously  promised  to  the  Creeks;  and  al- 
though they  form  an  excess  to  the  sum  limited  in  the 
resolution  aforesaid,  yet  from  the  beneficial  effects  likely 
to  be  produced  thereby,  cannot  be  objectionable. 

The  conomittee  briefly  described  the  new  boundary 
and  expre.ssed  the  opinion  that  the  treaty  should  t>e 
ratified,  \yhereupon  the  Senate  agreed  to  the  re- 
port and  formally  gave  its  consent  to  the  treaty  and 
advised  its  ratification  by  the  President. •• 

Thus  in  the  treaty  with  the  Cherokees  as  in  that 

'  Sen.  Exec.  Jour.,  I.  85;  Am.  State  Papers,  Indian  Affairs.  I. 
123-129. 

2  Sen.  Exec.  Jour.,  I.  85.  3  Ibid.,  pp.  So,  88. 

*  Ibid.  pp.  88,  89. 


V 


34  THE    SENATE    AND    TREATIES 

with  the  Creeks  the  Senate  was  asked  in  advance 
to  give  its  advice  as  to  the  terms  to  be  proposed  by 
the  commissioners  of  the  United  States.  The  prin- 
cipal difference  in  the  procedure  was  that  in  the 
earher  case  this  advice  was  given  during  a  personal 
consultation  between  the  President  and  the  Senate, 
while  the  details  of  the  later  negotiation  were 
settled  by  messages  between  the  two.  The  pro- 
cedure of  the  Senate  subsequently  to  the  signature 
of  the  treaty  was  much  the  same  in  each  case,  except 
that  the  Cherokee  agreement  was  referred  to  a 
committee,  while  no  such  reference  was  made  when 
the  question  of  the  ratification  of  the  Creek  treaty 
was  being  considered. 

It  should  be  observed  that  in  this,  as  in  other 
cases,  the  report  of  the  committee  emphasized  the 
general  conformity  of  the  treaty  with  the  advice 
and  consent  of  the  Senate  given  prior  to  the  nego- 
tiation, and  that  evidently  it  was  considered  that 
such  conformity  laid  upon  the  Senate  an  obligation 
to  assent  to  ratification.  The  single  stipulation  not 
conforming  with  this  prior  consent  was  noted  by  the 
committee  but  was  declared  to  be  unobjectionable. 

OTHER    TREATIES    WITH    INDIAN    TRIBES 

In  1794  the  Senate  for  the  first  time  exercised 
its  prerogative  of  refusing  to  consent  to  the  rati- 
fication of  a  treaty  negotiated  by  the  executive. 
In  1793  General  Putnam  had  concluded  a  treaty  of 
peace  and  friendship  with  the  Wabash  and  Illi- 
nois Indians,  acting  under  instructions  about  which 
the  Senate  never  had  been  consulted.     The  result 


DEVELOPMENT    OF   TREATY-MAKING    POWER         35 

of  his  negotiations  was  submitted  to  the  Senate 
February  13,  1793,  with  a  message  in  which  the 
President  adopted  a  course  which  frequently  was 
followed  in  later  years  —  that  is,  he  himself  sug- 
gested the  ratification  of  the  treaty  with  an  amend- 
ment.    In  making  this  suggestion  he  said: 

After  the  Senate  shall  have  considered  this  treaty,  I 
request  that  they  would  give  me  their  advice  whether 
the  same  shall  l)e  i-atificd  and  confirmed;  and,  if  to  be 
ratified  and  confirmed,  wliethei-  it  would  not  be  proper, 
in  order  to  prevent  any  misconception  hereafter  of  the 
fourth  article,  to  guard,  in  the  ratification,  the  exclusive 
pre-emption  of  the  United  States  to  the  land  of  the  said 
Indians.^ 

In  this  instance,  however,  the  presidential  sugges- 
tion did  not  meet  with  favor  in  the  Senate.  After 
that  body  had  considered  the  treaty  upon  three 
separate  occasions,  the  whole  matter  was  referred 
to  a  committee  of  which  Burr  was  chairman.- 
The  report  of  this  committee,  which  was  adopted, 
recommended  that  further  consideration  of  the 
treaty  be  postponed  until  the  next  session  of  Con- 
gress, and  that  in  the  meantime  the  President  be 
requested  to  cause  an  explanatory  article  to  be  nego- 
tiated with  the   Indians,  reserving   the   preemptive 

'  The  foiyth  article  of  this  treaty  was  as  follows:  "The  United 
States  solemnly  guaranty  to  the  Wabash,  and  the  Illinois  nations, 
or  tribes  of  Indians,  all  the  lands  to  whi(;h  they  have  just  claim; 
and  no  part  shall  ever  be  taken  from  them,  but  by  a  fair  purchase. 
and  to  their  satisfaction.  That  the  lands  originally  belonged  to 
the  Indians;  it  is  theirs  and  theirs  only.  That  they  have  a  right 
to  sell,  and  a  right  to  refuse  to  sell.  And  that  the  United  States 
will  i)rotect  them  in  their  said  just  rights."  Am.  State  Papers, 
Indian  Relations,  I.  338. 

2  Sen.  Exec.  Jour.,  I.  128. 


36  THE  SENATE  AND  TREATIES 

rights  in  the  Indian  lands  to  the  United  States,  as 
he  had  suggested  in  his  message.^ 

Before  this  could  be  done,  however,  most  of  the 
chiefs  who  had  signed  the  treaty  had  died  of  small- 
pox, and  early  in  the  next  session  the  President  re- 
ported  that   while   his   instructions   to   other   com- 
missioners had  been  modified  to  protect  the  rights 
in  question  in  the  future,  nothing  could  be  effected 
towards    modifying    this    particular    treaty.'    This 
brought  the  treaty  and  Washington's  original  sug- 
gestion once  more   before   the   Senate.     Upon   the 
failure  of  an  attempt  again  to  postpone  action  until 
the  next  session,  with  a  renewal  of  the  suggestion 
that    the   President    cause   an   explanation   to    the 
fourth  article  to  be  negotiated,  the  friends  of  the 
treaty  sought  to  secure  ratification  with  a  proviso 
such  as  that  originally  proposed   by   Washington. 
They  failed  in  this,  however,  and  the  matter  finally 
was  concluded  by  the  rejection  by  a  vote  of  twenty- 
one  to  four  of  a  simple  resolution  of  advice  and 
consent    to   ratification.'^     It    is    evident    from    the 
votes  that  a  large  minority  of  the  Senate  was  ready 
to  give  the  President  another  opportunity  to  modify 
the  treaty  and  perhaps  to  accept  it  with  the  sug- 
gested  proviso.     But   only   four   of   this   minority, 
Cabot,    Ellsworth,    Foster,    and   Strong,    voted   for 
the   resolution   to  accept   the   treaty  as   it   stood.-* 
Thus  the  Senate  for  the  first  time  declined  to  give 
its  advice  and  consent  to  the  ratification  of  a  treaty 
negotiated   under   the   direction   of   the    President. 

1  Sen.  Exec.  Jour.,  I.  134-135. 

2  Ibid.,  p.  145;  Am.  State  Papers,  Indian  Affairs,  I.  470. 

3  Ibid.,  pp.  145-6.  *  Ibid. 


DEVELOPMENT    OF   TREATY-MAKING    POWER         37 

The  rejection  is  especially  notable  because  the  treaty 
from  which  assent  was  withheld  was  one  of  the 
first  to  be  negotiated  by  the  executive  independently 
of  the  Senate.  On  this  account  the  position  of  the 
Senate  with  reference  to  ratification  was  likewise 
one  of  independence  —  an  independence  which  was 
manifested  first  in  the  refusal  to  accede  to  the 
presidential  suggestion  that  a  conditional  ratification 
be  resorted  to,  and  second  in  the  rejection  of  the 
treaty  when  the  suggested  negotiation  had  failed  to 
remove  or  alter  the  provision  to  which  exception 
had  been  taken. 

Procedure  upon  all  but  one  of  the  remaining 
Indian  treaties  considered  by  the  Senate  during 
Washington's  administrations  may  be  disposed  of 
in  comparatively  few  words. ^  Four  of  these  were 
signed  by  executive  agents  without  any  consulta- 
tion with  the  Senate  either  before  or  during  nego- 
tiation. In  no  case  did  the  latter  bod}'  take  ex- 
ception to  being  thus  ignored,  the  ratification  of 
each  of  the  treaties  being  consented  to  with  little 
opposition.  Light  is  thrown  upon  the  position 
taken  by  Washington  on  this  point  by  certain  facts 
in  connection  with  the  Treaty  of  Greenville  with 
the  Indians  northwest  of  the  Ohio.     On  February 

1  The  following  additional  treaties  were  before  the  Senate  dur- 
ing Washington's  administration:  Six  Nations,  1794  —  Sen.  Exec. 
Jour.,  I.  16.S-170;  Oneidas  and  Others,  1794  —  Ibid.;  Indians 
Northwest  of  the  Ohio  (Greenville),  1795  —  IhuL,  pp.  193-197;  Seven 
Nations  of  Canada,  1797  —  Ibid.,  pp.  219-220;  Additional  Article, 
Cherokee  Nation  (1791),  1792  — /6irf.,  pp.  9S-99;  Additional  Ar- 
ticle, Cherokee  Nation  (Holston  Treaty),  1794  —  Ibid.,  pp.  lt>8- 
170;   Additional  Article,  Five  Nations,  1792  —  Ibid.,  p.  116. 

The  treaty  with  the  Creek  Nation,  1796,  is  discussed  on  pp. 
9^107  below. 


38  THE  SENATE  AND  TREATIES 

25,  1793,  the  three  heads  of  departments  and  the 
Attorney  General  were  asked  four  questions  as  to 
the  kind  of  treaty  that  should  be  sought,  and  as 
to  the  powers  in  the  matter  possessed  respectively 
by  the  executive  alone  and  by  the  executive  and  the 
Senate.  In  response  to  the  fourth  question,  whether 
the  Senate  should  previously  be.  consulted  upon  the 
extent  of  the  relinquishments  of  land  which  should 
be  made  to  the  Indians  in  order  to  secure  peace, 
the  cabinet  expressed  the  unanimous  opinion  that 
it  would  be  better  not  to  consult  them  previously. 
The  following  paragraph  from  a  memorandum  made 
by  Jefferson  the  day  after  the  conference  explains 
why  the  cabinet  gave  this  advice:  ''Fourth  question. 
We  all  thought  if  the  Senate  should  be  consulted, 
and  consequently  apprised  of  our  line,  it  would  be- 
come known  to  Hammond,^  and  we  would  lose  all 
chance  of  saving  anything  more  than  our  ulti- 
matum." This  advice  was  followed  and  the  first 
official  intimation  given  to  the  Senate  of  the  in- 
structions under  which  the  resulting  treaty  was 
negotiated  was  received  when  the  completed  agree- 
ment was  laid  before  them. 

It  is  only  necessary  to  compare  the  procedure  in 
this  case  with  that  upon  two  earlier  Indian  treaties 
to  appreciate  the  extent  to  which  the  practical 
forces  of  politics  were  changing  the  manner  in  which 
the  President  and  the  Senate  exercised  their  function 
of  treaty-making.  Before  approaching  the  Creeks 
in  1789  Washington  personally  appeared  before  the 
Senate,  and  after  prolonged  consultation  received 
in  advance   their  advice  and    consent  in  detail  to 

^  George  Hammond,  British  minister  to  the  United  States. 


DEVELOPMENT   OF   TREATY-MAKING   POWER         39 

instructions  which  embodied  every  provision  of  the 
proposed  treaty.  A  year  later,  as  the  Senate  was 
about  to  consent  to  the  ratification  of  the  Creek 
treaty,  he  laid  before  them  for  their  formal  sanction, 
this  time  by  written  message,  the  general  proposi- 
tions upon  which  he  desired  to  base  an  agreement 
with  the  Cherokees.  And  finally,  in  1793,  when  it 
became  necessary  to  settle  the  problems  arising  out 
of  Indian  and  British  relations  in  the  northwest, 
he  decided  from  motives  of  expediency  not  to  con- 
sult the  Senate  in  any  way  until  after  the  proposed 
treaty  had  been  signed. 

In  addition  to  the  new  treaties  with  Indian 
tribes  which  were  made  during  Washington's  ad- 
ministration, it  was  found  advisable  in  1792  to 
provide  for  increasing  the  annuities  paid  to  the 
Five  Nations,  under  the  Treaty  of  1789,^  and  to 
the  Cherokees,  under  the  treaty  of  1791,-  from 
SI 000  to  -SI 500.  In  each  case  the  President  ex- 
plained to  the  Senate  the  reasons  for  granting  the 
increase  and  asked  and  received  its  advice  as  to 
the  negotiation  of  the  additional  article  providing 
for  it,  after  which  the  articles  were  signed  and  pro- 
claimed without  any  further  question. 

»  Sen.  Exec.  Jour.,  I.  116.  ^  /^^^^.^  pp.  98-99. 


CHAPTER   III 

The  Treaties  with  Algiers  and  Spain, 
1790-1796 

During  Washington's  administrations  the  Senate 
was  called  upon  to  participate  in  making  the  Jay 
treaty,  the  treaty  of  peace  and  amity  with  the 
Dey  of  Algiers,  concluded  in  September,  1795,  and 
the  Spanish  treaty  signed  a  month  later.  In  each 
case  it  played  an  important  part  not  only  in  the 
ratification  of  the  treaty,  but  also  during  its  nego- 
tiation. And  as  these  three  treaties  were  the  result 
of  much  of  the  diplomacy  of  the  first  eight  years  of 
our  national  existence,  it  follows  that  the  Senate 
exercised  a  constant  influence  over  our  foreign  re- 
lations during  this  period.  Although  these  nego- 
tiations will  be  taken  up  separately,  it  should  be 
borne  in  mind  that  they  were  being  carried  on 
simultaneously.^ 

THE    treaty   with    ALGIERS,    1795 

In  his  second  annual  address,  delivered  December 
8, 1790,  Washington  briefly  directed  the  attention  of 

1  The  relations  with  England  leading  up  to  the  Jay  Treaty 
were  first  considered  in  the  Senate  February  9,  1790;  the  treaty 
was  submitted  to  the  Senate  for  its  advice  and  consent  June  8, 
1795,  which  advice  and  consent  were  given,  conditionally,  June  24, 
1795;  for  the  treaty  with  Algiers  the  dates  were  December  30,  1790, 
February  15,  1796,  March  2,  1796;  for  the  Spanish  treaty,  January 
11,  1792,  February  26,  1796,  March  3,  1796. 

40 


THE   TREATIES   WITH    ALGIERS    AND    SPAIN        41 

Congress  to  the  distressed  condition  of  American 
trade  in  the  ^lediterranean  and  recommended  de- 
Uberations  which  might  lead  to  its  reUef  and  pro- 
tection.^ A  committee  consisting  of  Langdon, 
Morris,  King,  Strong,  and  Ellsworth  was  appointed 
to  consider  the  matter,  and  to  it  also  was  referred  a 
message  from  Washington  to  Congress  dated  De- 
cember 30,  1790,  submitting  a  report  from  the 
Secretary  of  State  setting  forth  the  facts  concerning 
the  capture  of  twenty-one  .\merican  seamen  by 
the  Algerines  m  1785  and  outlining  the  efforts  since 
made  by  the  govermnent  to  ransom  them  at  a 
reasonable  price.-  On  December  30,  also,  another 
report  of  the  Secretary  of  State  on  conmierce  in  the 
Mediterranean  was  submitted  to  the  House  of 
Representatives  and  four  days  later  was  laid  before 
the  Senate.  After  thoroughly  analyzing  the  situa- 
tion Jefferson  concluded  that  ''Upon  the  whole,  it 
rests  with  Congress  to  decide  between  war,  tribute, 
and  ransom,  as  the  means  of  establishing  our  Med- 
iterranean commerce."  ^  In  the  same  document 
Congress  was  informed  that  the  death  of  the  late 
Emperor  of  Morocco  had  made  it  necessary  to  ob- 
tain mimediate  recognition  by  his  successor  of  the 
liberal  treaty  of  1787  with  that  power,  a  treaty 
necessary  to  our  Atlantic  as  well  as  to  our  Med- 
iterraneaif  trade.'  It  will  be  seen,  therefore,  that 
the   question  of  our   Mediterranean  conmierce  in- 

*  Richardson,  A  Compilation  of  the  Messages  and  Papers  of  the 
Presidents,  1789-1897,  1.83.    Cited  below  as  Richardson,  Messages. 

2  American  Stale  Papers,  Foreign  Relations,  I.  100-104;  Annals 
of  Congress,  1789-1791,  II.  1735,  1740-1741. 

»  Am.  Stale  Papers,  Far.  Rels.,  I.  10.5.  *  Ibid. 


42  THE  SENATE  AND  TREATIES 

volved  three  points:  first,  the  ransoming  or  rescu- 
ing of  the  twenty-one  seamen  held  captive  by  the 
Algerines;  second,  by  force  or  by  tribute  securing 
our  ships  from  further  molestation;  third,  securing 
recognition  by  the  new  Emperor  of  Morocco  of  our 
treaty  with  that  nation.  The  solution  of  this 
problem,  or  of  any  part  of  it,  required  the  expenditure 
of  money;  and  circumstances  were  such  that  if 
negotiations  for  a  treaty  with  Algiers  were  resorted 
to  the  executive  must  be  able  to  go  to  the  Dey  with 
cash  in  hand.  Consequently  both  the  executive 
and  the  Senate  soon  had  to  decide  what  would  be 
the  relations  in  this  matter  between  themselves,  re- 
spectively, and  the  House  of  Representatives,  whose 
assent  would  be  required  for  any  appropriation. 

Langdon's  committee  reported  on  January  6, 
1791,^  that  the  trade  of  the  United  States  in  the 
Mediterranean  could  be  protected  only  by  a  naval 
force,  and  that  it  would  be  proper  to  resort  to  such 
force  as  soon  as  the  state  of  the  public  finances 
would  permit,"  When,  three  weeks  later,  the 
Secretary  of  State  transmitted  another  statement  re- 
garding the  Algerine  prisoners,  this  was  referred 
to  the  same  committee,  whose  report  of  the  sixth 
was  recommitted.^  On  February  1 ,  this  time  in  ex- 
ecutive session,  Langdon's  committee  was  again 
heard  from,  now  on  the  subject  of  the  American 
captives  and  the  Moroccan  treaty.  It  reported  a 
resolution : 

'  See  page  41  above. 

2  Annals  of  Congress,  1789-1791,  II.  1744;  Am.  State  Papers, 
Far.  Rels.,  I.  lOS. 

3  Ibid.  p.  1749;    Am.  State  Papers,  For.  Rels.,  I.  116-120. 


THE    TREATIES   WITH    ALGIERS    AND    SPAIN        43 

That  the  Senate  advise  and  consent  that  the  President 
of  the  United  States  take  such  measures  as  he  may  thnik 
necessary  for  the  redemption  of  the  citizens  of  the  United 
States  now  in  captivity  at  Algiers,  provided  the  expense 
should  not  exceed  forty  thousand  dollars;  and  also  that 
measures  be  taken  to  confirm  that  treaty  now  existing 
between  the  United  States  and  the  Emperor  of  Morocco, 
provided  that  no  greater  sum  than  twenty  thousand 
dollars  be  expended  in  that  business. 

With  the  exception  of  the  proviso  limiting  the  ex- 
pense in  the  Moroccan  business  to  §20,000  this 
resolution  was  adopted.  At  the  same  time  another 
report  of  the  committee,  identical  with  that  of 
January  6,  was  again  recommitted.^ 

The  resolution  of  advice  was  referred  by  the  Presi- 
dent to  his  Secretary  of  State,  and  by  February  22 
Jefferson  had  prepared  a  reply  which  was  signed  by 
Washington  and  submitted  on  that  date.-  The 
Senate  was  informed  that  the  President  would 
proceed  to  ransom  the  Algerine  captives,  and  to 
secure  recognition  of  the  treaty  with  Morocco  as 
soon  as  the  necessary  money  had  been  appropriated 
by  the  legislature.^  The  matter  was  again  referred 
to  Langdon's  committee,  and  on  March  3  the 
Senate  adopted  the  resolution  which  he  reported  to 
it,  as  follows: 

Whereas,  since  the  resolution  of  the  Senate  advising  the 
President  'of  the  United  States  to  take  measures  for  the 
ransom  of  American  captives  at  Algiers,  large  appropria- 

1  Sen.  Exec.  Jour.,  I.  72-73.     For  the  conclusion  of  the  Morocco 
business,  see  pp.  52-53  below. 

2  Writings  of    Thomas  Jefferson,    IX.   331,   343-5;     Jefferson   to 
Madison,  April  19,  1796  and  enclosure. 

»  Sen.  Exec.  Jour.,  I.  75. 


44  THE  SENATE  AND  TREATIES 

tions  of  money  have  been  made  for  the  protection  of  the 
Western  frontiers: 

Resolved,  That  the  Senate  do  advise  and  consent  that 
the  President  of  the  United  States  suspend  any  opera- 
tions under  the  said  resolutions,  for  the  ransom  of  said 
captives,  until  the  situation  of  the  treasury  shall  more 
clearly  authorize  the  appropriation  of  money  for  that 
purpose.^ 

As  this  resolution  was  passed  on  the  last  day  of 
the  second  session,  it  meant  that  the  matter  was 
to  be  held  over  until  the  next  Congress. 

Probably  the  Senate  withdrew  the  ''advice  "  which 
it  had  given  a  month  previously  not  so  much  be- 
cause the  ''situation  of  the  treasury"  had  changed^ 
as  because  Washington  had  intimated  that  he 
would  not  undertake  the  negotiations  until  the 
money  required  had  been  appropriated  by  Congress. 
The  Senate  was  unwilling  to  ask  the  House  of  Rep- 
resentatives for  an  advance  appropriation,  and  at 
the  same  time  was  not  quite  ready  to  advise  the 
President  to  proceed  without  one. 

Early  in  the  first  session  of  the  second  Congress, 
the  fate  of  the  Algerine  captives  was  again  brought 
before  the  Senate  by  a  petition  of  one  of  their  num- 
ber who  had  been  privately  ransomed.  It  was  now 
ordered  that  all  communications  on  the  subject  be 
referred  to  a  committee  to  be  composed  of  Butler, 
Langdon,  Morris,  King,  and  Strong,  with  instruc- 
tions to  report  thereon.-  On  December  6  this 
committee  recommended^  that  it  be,  "Resolved  by 
the  Senate  of  the  United  States,  in  their  capacity  as 

^  Sen.  Exec.  Jour.,  I.  78. 

2  Annals  of  Congress,  1791-1793,  I.  26. 

'  Sen.  Exec.  Jour.,  1.  91. 


THE    TREATIES    WITH    ALGIERS    AND    SPAIN  45 

Council  of  Advice,"  that  if  the  President  should 
secure  a  treaty  with  Algiers,  Tunis,  and  Tripoli  at 
an  expense  not  exceeding  S100,000  per  year,  and 
should  ransom  the  Algerine  captives  at  an  expense 
of  not  more  than  840,000  the  Senate  would  advise 
and  consent  to  the  same  and  would  also  approve 
the  expenditure  of  S5000  in  the  negotiation.  It 
was  recommended,  further,  that  if  no  such  treaty 
should  be  secured  S2400  should  be  distributed  an- 
nually among  the  families  of  the  captives.^ 

This  report  was  not  accepted  by  the  Senate  but 
was  made  the  basis  of  debate  on  the  general  question 
upon  six  different  occasions  during  the  following 
three   months.-     Early    in    March,    1791,    it    "was 

'  This  report  was  as  follows:  "Resolved  by  the  Senate  of  the 
United  States,  in  their  capacity  as  Council  of  Advice,  That  if  the 
President  of  the  United  States  shall  enter  into  any  treaty  con- 
vention for  the  purpose  of  establishinp:  and  preserving  a  peace 
with  the  Regency  of  Algiers  and  with  Tunis  and  Tripoli,  at  an 
expense  not  exceeding  one  hundred  thousand  dollars  annually, 
for  such  term  of  years  [as]  shall  be  stipulated,  and  for  the  purpose 
of  ransoming  the  citizens  of  the  United  States  in  captivity  with  the 
Algerines,  'at  an  expense  not  exceeding  forty  thousand  dollars  for 
the  said  ransom.'  the  Senate  will  advise  and  consent  to  the  same, 
and  ratify  and  approve  any  measures  which  the  President  of  the 
United  States  shall  take  for  accomplishing  these  measures  to  an 
amount  not  exceeding  five  thousand  dollars,  although  such  measures 
should  prove  unsuccessful. 

"Resolved,  That  if  a  convention  or  treaty  for  the  establishment 
of  peace  caifnot  be  made  with  the  Regency  of  Algiers  the  sum  of 
two  thousand  four  hundred  dollars  annually  shall  be  distributed 
among  the  said  captives  or  their  families,  as  they  may  prefer,  and 
in  such  proportion  as  the  President  of  the  United  States  shall  order 
and  direct  during  their  captivity."  Compilation  of  Reports  of  the 
Committee  on  Foreign  Relations,  United  States  Senate,  17S9-1901, 
VIII.  6.  Cited  below  as,  Compilation  of  Reports,  Sen.  Com.  For. 
Rels. 

2  Sen.  Exec.  Jour.,  I.  91-100. 


46  THE  SENATE  AND  TREATIES 

agreed  to  commit  the  report  for  the  purpose  of 
conferring  with  the  President  of  the  United  States, 
on  the  subject  matter  thereof,  to  Mr.  King,  Mr. 
Morris,  and  Mr.  Izard."  ^  In  Jefferson's  notes  on 
the  conferences  of  this  committee  with  Washington 
is  to  be  found  the  real  explanation  of  the  failure  of 
the  Senate  to  act.     "The  President,"  he  recorded, 

had  wished  to  redeem  our  captives  at  Algiers,  and  to 
make  peace  with  them  on  paying  an  annual  tribute. 
The  Senate  were  willing  to  approve  this,  but  unwilling 
to  have  the  lower  House  applied  to  previously  to  furnish 
the  money;  they  wished  the  President  to  take  the  money 
from  the  treasury,  or  open  a  loan  for  it.  They  thought 
that  to  consult  the  Representatives  on  one  occasion, 
would  give  them  a  handle  always  to  claim  it,  and  would 
let  them  into  a  participation  of  the  power  of  making 
treaties,  which  the  Constitution  had  given  exclusively  to 
the  President  and  the  Senate.  They  said,  too,  that  if 
the  particular  sum  was  voted  by  the  Representatives,  it 
would  not  be  a  secret. 

Concerning  Washington's  position,  Jefferson 
continued, 

The  President  had  no  confidence  in  the  Secrecy  of  the 
Senate,  and  did  not  choose  to  take  money  from  the 
Treasury  or  to  borrow.  But  he  agreed  he  would  enter 
into  provisional  treaties  with  the  Algerines  not  to  be 
binding  on  us  until  ratified  here.^ 

1  Sen.  Exec.  Jour.,  p.  106. 

2  The  Writings  of  Thomas  Jefferson  (Definitive  edition),  I.  294, 
295,  305-309.  "In  this  very  case  Mr.  Izard  made  the  communi- 
cation to  him,  sitting  next  to  him  at  table,  on  the  one  hand,  while 
a  lady  (Mrs.  McLane)  was  on  his  other  hand,  and  the  French 
minister  next  to  her;  and  as  Mr.  Izard  got  on  with  his  communi- 
cation, his  voice  kept  rising,  and  his  stutter  bolting  the  words  out 
loudly  at  intervals,  so  that  the  minister  might  hear  if  he  would. 
He  said  he  had  a  great  mind  at  one  time  to  have  got  up,  in  order 
to  put  a  stop  to  Mr.  Izard." 


THE    TREATIES    WITH    ALGIERS    AND    SPAIN         47 

Jefferson  himself  was  opposed  to  ''hazarding  this 
transaction  without  the  sanction  of  both  Houses." 
"I  had  observed,"  he  wrote, 

that  wherever  the  agency  of  cither,  or  both  Houses 
would  be  requisite  subsequent  to  a  treaty,  to  carrj'-  it 
into  effect,  it  would  be  prudent  to  consult  them  pre- 
viously if  the  occasion  admitted.  That  thus  it  was,  we 
wore  in  the  habit  of  consulting  the  Senate  previously, 
when  the  occasion  permitted  because  their  subsequent 
ratification  would  be  necessary.  That  there  was  the  same 
reason  for  consulting  the  lower  House  previously,  where 
they  were  to  be  called  on  afterwards,  and  especially  in 
the  case  of  money,  as  they  held  the  purse  strings,  and  would 
be  jealous  of  them.  However,  he  desired  me  to  strike 
out  the  intimation  that  the  seal  would  not  be  put  till 
both  Houses  should  have  voted  the  money.' 

No  official  record  of  the  report  of  the  committee 
of  three  has  been  preserved.'-  But  whatever  they 
may  have  recommended  to  the  Senate,  the  outcome 
was  that  the  appropriation  which  Washington  de- 
sired was  made  by  Congress  before  he  proceeded 

1  The  Writings  of  Thomas  Jefferson.      I.  294,  295,  305-309. 

2  A  number  of  years  later  Jefferson  found  among  his  press  copies 
the  following,  in  his  own  handwriting:  "The  committee  to  report, 
that  the  President  does  not  think  that  circumstances  will  justify, 
in  the  present  instance,  his  entering  into  absolute  engagements  for 
the  ransom  of  our  captives  in  Algiers,  nor  calling  for  money  from  the 
Treasury,  nor  raising  it  by  loan,  without  previous  authority  from 
both  branches  of  the  Legislature.  .April  9,  1792."  In  sending  this 
paper  to  ]\ftadison  in  1796  Jefferson  stated  that  to  the  best  of  his 
recollection  this  was  a  minute  that  he  had  given  privately  to  a 
member  of  the  committee  as  expressing  the  substance  of  what  had 
passed  with  the  President,  and  that  it  probably  had  been  used  by 
the  committee  in  its  report  to  the  Senate.  However  that  may  be, 
it  is  evident  that  the  President  adhered  to  his  decision  that  the 
treaty  should  ncjt  be  made  until  both  houses  shoukl  have  voted  the 
money.     The  Writings  of  Thomas  Jefferson,  IX.  331,  343-345. 


48  THE    SENATE    AND    TREATIES 

with  the  negotiations.  From  the  beginning  the 
House  had  been  kept  informed  of  the  status  of  our 
affairs  in  the  Mediterranean  as,  indeed,  it  was 
throughout  the  entire  negotiation  of  the  treaty. 
As  a  result  of  this  pohcy  the  representatives  un- 
doubtedly were  fully  conversant  with  the  needs  of 
the  situation.  In  procuring  the  appropriation 
Washington,  or  Jefferson,  must  have  acted  through 
informal  conferences  with  individual  members;  prob- 
ably it  is  on  this  account  that  it  now  seems  to  be 
impossible  to  ascertain  the  manner  in  which  they 
secured  the  passage  of  the  bill.^ 

The  House  voted  to  make  the  appropriation, 
however,  on  the  last  day  of  the  session,  and  the 
measure  was  at  once  presented  to  the  Senate. 
Here  the  bill  w^as  read  twice  and  referred  to  ]M orris, 
Cabot,  and  Ellsworth,  who  at  the  same  time  were 
asked  to  consider  and  report  upon  a  message  from 
the  President  on  the  Algerine  matter.  In  this 
message  Washington  inquired  if  the  Senate  would 
approve  a  treaty  providing  for  the  ransom  of  the 

1  Tracing  the  matter  as  it  appears  in  the  Annals  of  Congress 
it  is  to  be  observed  that  on  April  18  a  petition  was  presented  by- 
two  men  ransomed  from  the  Algerines  by  private  means  asking  to 
be  reimbursed  for  the  amount  of  their  ransom  and  their  expenses 
from  Algiers  to  the  United  States,  and  also  that  measures  be  taken 
to  secure  the  ransom  of  the  remaining  j^risoners.  Annals  of  Con- 
gress, 1791-1793,  p.  559. 

The  committee  to  which  this  petition  was  referred  reported 
April  26,  and  their  report  was  referred  to  "the  Committee  of  the 
Whole  House  on  the  bill  making  certain  a|)propriations  therein 
mentioned."     Ibid.,  p.  580. 

On  May  7  this  bill  was  considered  in  the  Committee  of  the  Whole, 
and  ordered  to  be  engrossed  and  read  a  third  time  on  the  morrow 
and  on  the  eighth  the  first  business  recorded  in  the  Annals  is  its 
passage.     Ibid.,  p.  600. 


THE    TREATIES   WITH    ALGIERS    AND    SPAIN         49 

Algoj'ine  captives  at  a  cost  not  to  exceed  S40,000, 
or  if  there  was  any  greater  or  lesser  sum  which  they 
would  fix  as  the  limit  beyond  which  they  would  not 
approve  tlu»  ransom.  The  same  question  was 
asked  with  reference  to  a  treaty  of  peace  at  the  cost 
of  .S25,U00  down  and  a  like  sum  to  be  paid  annually 
during  the  continuance  of  the  treaty.  By  adopting 
the  resolution  reported  by  the  committee,  the 
Senate  promised  to  approve  a  treaty  of  peace  pro- 
viding for  the  payment  of  825,000  upon  signature 
and  for  an  annual  gift  of  S40,000  thereafter.  The 
President  was  also  informed  that  "in  case  such  a 
treaty  be  concluded,"  the  Senate  would  approve 
another  agreement  providing  for  the  ransom  of 
the  captives  at  a  cost  not  to  exceed  S25,000.^ 

At  the  same  time  the  committee  reported  the 
House  appropriation  bill  with  an  amendment, 
which  was  adopted  by  the  Senate  and  agreed  to  by 
the  House,  the  bill  thus  passing  both  chambers  on 
the  last  daj^  of  the  session.  Section  three  of  the 
act  made  the  appropriation  desired  by  the  Presi- 
dent by  enacting 

that  a  simi  of  fifty  thousand  dollars  ...  be  appropriated 
to  defray  any  exj)ense  which  may  be  incurred  in  relation 
to  the  inteicourse  between  the  United  States  and  foreign 
nations,  ...  to  be  applied  under  the  direction  of  the 
Pi-esident  of  the  United  States  who,  if  necessary,  is 
authorized'to  borrow,  on  the  credit  of  the  United  States, 
the  said  sum  of  fifty  thousand  dollars;  an  account  of  the 
expenditure  whereof  as  soon  as  may  be,  shall  be  laid 
before  Congress. ^ 

•  Sen.  Exec.  Jour.,  I.  122-123. 

^  Statutes  at  Large  of  the  United  States  of  America,  I.  2S4-285 
(Acts  of  2d  Cong.,  1st  Sess.,  Chap.  XLI,  Sec.  3). 


50  THE  SENATE  AND  TREATIES 

The  Senate  thus  had  agreed  to  approve  a  treaty 
or  treaties  which  called  for  a  preliminary  payment 
of  $50,000,  the  exact  amount  appropriated  at  the 
same  time  to  provide  for  intercourse  between  the 
United  States  and  foreign  nations.  Evidently  IVIorris, 
Cabot,  and  Ellsworth  had  proposed  the  Senate 
amendment  to  the  House  bill  in  order  to  make  the 
appropriation  coincide  in  amount  with  the  sum 
fixed  by  the  Senate  as  the  limit  for  the  preliminary 
payment.  That  the  money  was  for  this  purpose 
cannot  be  doubted,  for  Jefferson  in  a  subsequent 
report  to  Congress  stated: 

In  order  to  enable  the  President  to  effect  the  objects 
of  this  (Senate)  resolution,  the  Legislature,  by  their  act 
of  May  8th,  1792,  c.  41,  Sec.  3,  appropriated  a  sum  of 
fifty  thousand  dollars  to  defray  any  expense  which  might 
be  incurred  in  relation  to  the  intercourse  between  the 
United  States  and  foreign  nations.^ 

It  is  evident  that  in  this  transaction  the  Senate 
failed  to  maintain  the  position  it  had  assumed. 
The  point  at  issue  was  this:  Has  the  President, 
upon  the  advice  of  the  Senate,  constitutional  au- 
thority to  draw  money  from  the  treasury  or  to 
borrow  it  on  the  credit  of  the  United  States  in  order 
to  make  the  first  payment  on  a  treaty  which  he 
negotiates  with  the  advice  and  consent  of  the 
Senate?  And  if  so,  is  it  the  constitutional  duty  of 
Congress  subsequently  to  appropriate  the  money  so 
spent?  The  Senate  answered  both  questions  in 
the  affirmative.  The  President  and  his  Secretary 
of  State  seem  not  to  have  expressed  any  cate- 
gorical  opinion   upon   the   abstract   question;    but 

1  Atn.  State  Papers,  For.  Rels.,  I.  290. 


THE    TREATIES    WITH    ALGIERS    AND    SPAIN         51 

they  declined  to  negotiate  the  treaty  until  the  ap- 
propriation had  been  made.  How  far  their  position 
was  based  upon  a  consideration  of  the  constitu- 
tional powers  of  the  President,  and  to  what  degree 
the  question  of  expediency  determined  their  action 
we  have  no  means  of  knowing.  The  course  followed 
is  characteristic  of  Washington's  far-seeing  caution 
in  constitutional  interpretation  and  in  politics. 
Incidently,  it  left  the  principle  at  issue  for  the  de- 
cision of  the  future. 

The  incident  is  an  interesting  revelation  of  the 
mechanics  of  the  machine  set  up  under  the  influence 
of  the  check  and  balance  theory  of  government. 
The  treaty-making  power  had  been  hard  to  fit  into 
the  general  system,  but  finally  had  been  intrusted 
to  the  executive  and  a  part  of  the  legislature.  In 
the  early  exercise  of  this  power  each  of  these  au- 
thorities was  determined  to  assert  to  the  full  its 
constitutional  rights.  Yet  each  hesitated  to  ex- 
ceed its  authority  lest  it  should  find  itself  in  active 
conflict  with  the  other  or  with  the  House  of  Repre- 
sentatives. Thus  political  forces  tended  to  keep 
each  agent  within  the  sphere  of  its  legal  competence, 
while  at  the  same  time,  also  as  a  matter  of  practical 
politics,  each  participated  to  some  degree  in  per- 
forming a  function  which  lay  without  that  sphere. 
This  interaction  is  inevitable  in  many  phases  of 
governmental  activity,  but  in  none,  perhaps,  is 
it  more  so  than  in  the  making  of  treaties  which  also 
are  laws. 

During  the  three  years  of  negotiation  which 
followed,  the  President,  in  his  annual  and  special 
messages  to  Congress,  continued  to  keep  the  Senate 


52  THE    SENATE    AND    TREATIES 

and  the  House  equally  informed  of  the  progress  of 
the  negotiation.  Whatever  information  he  sent  to 
the  Senate  he  submitted  also  to  the  Representatives, 
a  course  which  was  in  accord  with  the  opinion  of 
Jefferson,  that  when  negotiating  a  treaty  which 
would  require  subsequent  legislation,  it  was  good 
policy  for  the  executive  to  keep  in  close  touch  with 
both  branches  of  the  legislature.^ 

The  treaty,  which  was  signed  September  15,  1795, 
was  transmitted  to  the  Senate  on  the  fifteenth  of 
the  following  February,  along  with  numerous  papers 
and  documents.-  After  three  days  of  debate,  the 
Senate  referred  it  to  a  committee  composed  of 
Ellsworth,  Cabot,  King,  Langdon,  and  Brown. ^ 
Their  report  estimated  the  expenditure  required  by 
the  treaty  as  a  sum  considerably  in  excess  of  that 
previously  authorized  by  the  Senate,  but  at  the 
same  time  recommended  ratification.^  Action  was 
delayed  for  several  daj^s  by  Senators  who  ap- 
parently believed  that  the  agreement  to  pay  the 
sums  stipulated  in  naval  stores  might  lead  to  dif- 
ficulties later.  On  March  2,  however,  ratification 
was  advised  by  a  very  large  majority,  although  a 
subsequent  motion  to  change  the  form  of  the  reso- 
lution by  substituting  "unanimously"  for  ''two- 
thirds  of  the  Senatore  present,"  failed,  16  to  11.^ 

It  will  be  remembered  that  on  February  22,  1791, 
the   Senate   had   advised   the   President   to   secure 

1  Am.  State  Papers,  For.  Rels.,l.  288-300,  413-422.  Richardson 
Messages,  I,  148,  152,  176-7. 

-  Sen.  Exec.  Jonr.,  I.  108;  Am.  State  Papers,  For.  Rels.,  I.  528- 
532. 

3  Ibid.,  p.  199.  "  IbuL,  pp.  200-201. 

6  Sen.  Exec.  Jour.,  I.  201-202. 


THE    TREATIES    WITH    ALGIERS    AND    SPAIN'         53 

recognition  of  the  treaty  of  1787  with  Morocco  by 
the  new  Emperor  of  that  state.  Shortly  after- 
wards an  appropriation  of  §20,000  for  this  purpose 
was  made  l)y  Congress.^  Report  of  the  progress  of 
this  negotiation  was  made  to  Congress  in  the  mes- 
sage of  December  16,  1793,  concerning  both  the 
Moroccan  and  the  Algerine  questions.  After  the 
recognition  of  the  treaty  had  been  secured,  however, 
it  was  to  the  Senate  alone  that  a  final  report  was 
made.- 

THE  TREATY  OF  SAN  LORENZO  EL  REAL 

Upon  the  third  of  March,  1796,  the  day  following 
their  final  action  on  the  treaty  with  Algiers,  the 
Senate  gave  their  advice  and  consent  to  the  rati- 
fication of  another  convention  which  was  of  much 
greater  importance  to  the  nation.  This  was  the 
treaty  which  had  been  signed  at  San  Lorenzo  el 
Real  during  the  preceding  October  and  which  pro- 
vided for  the  settlement  of  difficulties  with  Spain 
of  thii'teen  years'  standing.  The  chief  points  at 
issue  concerned  the  boundary  between  the  southern 
territory  of  the  United  States  and  West  Florida, 
commerce  between  the  two  countries,  and  the 
navigation  of  the  lower  jMississippi  by  American 
citizens.  Because  it  abandoned  this  latter  right,  or 
privilege,  for  a  term  of  years  the  Jay-Gardoqui 
treaty,  which  was  negotiated  during  the  years 
1785  and  1786,  was  rejected  by  the  Congress  of  the 

1  U.  S.  Statute.^  at  Large,  I.  214  (Acts  of  3d  Sess.  of  1st  Cong., 
Stat.  Ill,  Ch.  XVI). 

2  For  a  brief  history  of  the  Morocco  Treaty,  see  Davis,  Xotes 
Upon  Foreign  Treaties  of  the  United  States,  pp.  1242-1244. 


64  THE    SENATE    AND    TREATIES 

Confederation,  This  body  finally  referred  the  entire 
matter  to  the  new  government  under  the  Consti- 
tution.^ By  1791  the  situation  had  become  such 
that  the  government  practically  faced  the  alterna- 
tives of  securing  the  right  to  navigate  the  Mississippi 
to  its  mouth  for  citizens  of  the  United  States  or  of 
losing  the  allegiance  of  the  settlers  west  of  the 
Alleghenies  and  south  of  the  Ohio.  The  relations 
between  Spain  and  the  powerful  Indian  tribes  of 
the  southwest  increased  the  tension  and  it  became 
"clear  that  an  agreement  or  war  must  come.  This 
was  as  plain  to  Spain  as  to  Washington  and  his 
cabinet,  and  on  December  16,  1791,  the  Spanish 
minister  for  foreign  affairs  made  known  the  readi- 
ness of  Madrid  to  negotiate."  - 

Early  in  January,  1792,  the  President  sought  the 
advice  of  the  Senate  in  the  matter,  by  laying  be- 
fore them  a  statement  of  the  facts  and  asking  con- 
formation of  the  appointment  of  William  Carmichael 
and  William  Short  "to  be  Commissioners  Pleni- 
potentiary ...  for  negotiating  and  concluding  a 
convention,  or  treaty,  concerning  the  navigation  of 

'  Jay  to  Gardoqui,  October  17,  1788.  Am.  State  Papers,  For. 
Rels.,  I.  251. 

^  Chadwick,  The  Relations  of  the  United  States  and  Spain:  Diplo- 
niacy,  p.  35.  Chapters  I  and  II  of  this  work  briefly  review  the 
diplomatic  relations  between  the  two  countries  through  the  treaty 
of  1795.  See  also  Rives,  "Spain  and  the  United  States  in  1795." 
American  Historical  Review,  IV.  62-79,  for  the  diplomacy  leading 
up  to  the  treaty,  and  particularly  for  an  explanation  of  the  reasons 
that  led  Spain  to  sign  a  convention  so  favorable  to  the  United  States. 
See  also,  Lyman,  Diplomacy  of  the  United  States,  I.  vii,  for  account 
of  Spanish  American  relations,  1777-1814;  Moore,  International 
Law  Digest,  V.  849-855;  Bassett,  The  Federalist  System,  Ch.  V.; 
Trescot,  The  Diplomatic  History  of  the  Administrations  of  Washing- 
ton and  Adams,  1789-1801,  Ch.  IV. 


THE    TREATIES   WITH    ALGIERS   AND    SPAIN         OO 

the  river  Mississippi  by  the  citizens  of  the  United 
States;  saving  to  the  President  and  the  Senate 
their  respective  rights  as  to  the  ratification  of  the 
same."  ^  After  the  Senate  had  confirmed  these 
nominations  and  thereby  sanctioned  the  proposed 
treaty,  Spain  expressed  a  desire  to  extend  the 
negotiations  to  cover  all  matters  considered  be- 
tween Jay  and  Gardoqui  in  1785  and  1786,  par- 
ticularly the  commercial  relations  between  the  two 
countries.  Jefferson  believed  that  the  Senate  should 
be  consulted  before  the  powers  of  the  American 
commissioners  were  extended  to  cover  commercial 
matters,  and  on  March  7  the  President  laid  before 
it  the  proposed  additional  instructions.  In  doing  so 
he  definitely  asked  the  Senate  if  they  w^ould  "advise 
and  consent  to  the  extension  of  the  powers  of  the 
Commissioners,  as  proposed,  and  to  the  ratification 
of  a  treaty  which  shall  conform  to  those  instructions, 
should  they  enter  into  such  a  one  with  that  Court." 
The  message  and  the  accompanying  documents 
were  referred  to  a  committee  composed  of  Cabot, 
Morris,  and  Langdon,  and  on  the  following  day 
the  Secretary  of  the  Treasury  was  asked  to  furnish 
the  Senate  with  detailed  information  concerning 
the  imports  and  exports  of  the  states,  individually, 
for  one  year.-  On  March  16  the  Senate  agreed  to 
the  proposed  extension  of  powers  in  a  resolution 
which  \i  significant  enough  to  be  quoted  in  full. 
It  was  as  follows: 

Resolved,  (two-thirds  of  the  Senators  concurring  therein,) 
That  they  advise  and  consent  to  the  extension  of  the 
powers  of  the  Commissioners  as  proposed,  and  that  they 

'  Sen.  Exec.  Jour.,  I.  9o-9ti.  -  Ibid.,  pp.  10t)-110. 


56  THE  SENATE  AND  TREATIES 

will  advise  and  consent  to  the  ratification  of  such  treaty 
as  the  said  Commissioners  shall  enter  into  with  the  Court 
of  Spain,  in  conformity  to  those  instructions.^ 

It  should  be  noted  that  this  resolution  explicitly 
binds  the  Senate  to  agree  to  the  ratification  of  a 
treaty  concluded  in  conformity  with  the  instruc- 
tions which  they  had  approved. 

Two  days  after  the  Senate  had  consented  to  the 
extension  of  the  scope  of  the  negotiation,  Jefferson 
submitted  to  Washington  his  instructions  to  the 
commissioners.  These  instructions  deal  with  three 
subjects,  —  boundary,  the  navigation  of  the  Mis- 
sissippi, and  commerce.  Those  given  on  the  latter 
subject  are  verbatim  as  assented  to  by  the  Senate.^ 
The  instructions  upon  boundaries  and  the  naviga- 
tion of  the  Mississippi  never  had  been  laid  before 
that  body,  however.  This  inconsistency  in  pro- 
cedure shows  to  what  extent  Washington  and  the 
Senate  transacted  the  business  of  treaty-making 
along  the  lines  indicated  by  political  convenience  or 
necessity. 

Spanish  procrastination  and  ''new  combinations 
among  the  powers  of  Europe"  having  delayed  the 
conclusion  of  the  treaty  for  more  than  two  years, 
Washington  on  November  21,  1794,  nominated 
Thomas  Pinckney,  then  Minister  of  the  United 
States  at  the  Court  of  St.  James,  as  envoy  extraor- 
dinary to  conclude  the  negotiations.  The  terms  in 
which  Pinckney  was  nominated  define  his  mission 
as  identical  with  that  with  which  Short  and  Car- 
michael  had  been  charged,  and  later,  in  submitting 

1  Sen.  Exec.  Jour.,  I.  115. 

2  Am.  State  Papers,  For.  Rels.,  I.  252-257. 


THE    TREATIES   WITH    ALGIERS   AND    SPAIN         57 

the  treaty  which  he  signed,  the  President  informed 
the  Senate  that  it  had  been  negotiated  under  the 
original  instructions  to  the  earUer  envoys,  sup- 
plemented by  a  later  instruction  on  the  subject  of 
spoliation  claims.^  On  February  26,  1796,  the 
Senate  unanimously  gave  its  advice  and  consent  to 
the  ratification  of  the  treaty. ^ 

1  Am.  Slate  Papers,  For.  IMs.,  I.  533;   Sen.  Exec.  Jour.,  I.  200. 

2  Sen.  Exec.  Jour.,  I.  200,  201,  203.  A  motion  to  "insert  the 
word  'unanimously'  instead  of  the  words  'two-thirds  of  the  Senators 
present,'"  failed,  11  to  16. 


CHAPTER   IV 

The  Jay  Treaty 

While  the  President  and  the  Senate  were  working 
out  the  treaties  thus  far  considered,  they  were  also 
engaged,  along  with  the  House  of  Representatives, 
in  the  solution  of  the  paramount  problem  of  the 
early  foreign  affairs  of  the  United  States,  that  of 
our  relations  with  Great  Britain.  The  heritage  of 
trouble  arising  out  of  the  treaty  of  peace  of  1783 
which  descended  to  the  new  federal  government  is 
too  well  understood  to  require  discussion  here,  as 
are  the  subsequent  events  which  finally  presented 
to  Washington's  government  the  alternatives  of 
concluding  a  treaty  of  some  sort  or  of  going  to  war 
with  England.^  The  manner  in  which  the  Senate 
performed  its  part  in  Anglo-American  affairs  from 
1790  to  1796,  and  the  relations  of  the  President 
with  both  Houses  of  Congress  in  the  solution  of 
the  British  problem  are  of  primary  importance, 
however,  in  the  study  of  the  exercise  of  the  treaty- 
making  powers  of  the  Senate. 

'  Moore,  International  Law  Digest,  V.  699-707;  Lyman,  Diplo- 
macy of  the  United  States,  L  xi.,  traces  Anglo-American  relations 
from  1783  through  this  treaty;  Rankin,  The  Treaty  of  Comity,  Com- 
merce and  Navigation  Between  Great  Britain  and  the  United  States, 
1794.  Bassett,  The  Federalist  System,  Chs.  IV,  VIII;  McMaster, 
History  of  the  People  of  the  United  States,  II.  viii,  xi;  Foster, 
A  Century  of  American  Diplomacy,  Ch.  V;  Trescot,  Diplomatic 
History,   Ch.  II. 

58 


THE    JAY    TREATY  59 

The  question  of  British-American  relations  was 
first  formally  presented  to  the  Senate  on  February  9, 
1790,  when  Washington  asked  their  advice  as  to 
the  best  method  of  sett  lino;  the  old  dispute  over  the 
northeast  boundary.     The  message  states: 

A  plan  for  cleci(lin<i;  this  difference  was  laid  before  the 
late  Congress;  and  whetluM'  that,  or  some  other  plan  of 
a  like  kind,  would  not  now  be  eligible,  is  submitted  to 
your  consideration. 

In  my  opinion  it  is  desirable  that  all  questions  between 
this  and  other  nations  should  be  speedily  and  amicably 
settled;  and  in  this  instance,  I  think  it  advisable  to  post- 
pone any  negotiations  on  the  subject,  until  I  shall  be 
informed  of  the  result  of  your  deliberations,  and  receive 
your  advice  as  to  the  propositions  most  proper  to  be 
offered  on  the  part  of  the  United  States. 

As  I  am  taking  measures  for  determining  the  inten- 
tions of  Great  Britain  respecting  the  further  detention 
of  our  posts, 1  etc.,  I  am  the  more  solicitous  that  the 
business  now  submitted  to  you  may  be  prepared  for 
negotiation,  as  soon  as  the  other  important  affairs  which 
engage  your  attention  will  permit .'- 

This  message  is  characteristic  of  the  early  attitude 
of  Washington  towards  the  Senate  as  a  council  of 
advice  in  foreign  affairs.  It  was  referred,  with  the 
accompanying  documents,  to  a  committee  composed 
of  Strong,  Butler,  Patterson,  Hawkins,  and  John- 
son,^ as  was  another  communication  on  the  subject 
subsequently  received  from  Governor  Hancock  of 
Massachusetts.^     Acting  in  accordance  with  the  re- 

•  This  refers  to  the  mission  of  Gouverneur  Morris. 

2  Sen.  Exec.  Jour.,  I.  3(>-37;  Am.  Stale  Papers,  For.  Rels.,  I.  00- 
99. 

'  Sen.  Exec.  Jour.,  I.  40. 

*  Ibid,  pp.  40-41;    Am.  Stale  Papers,  For.  /?c/.s\,  I.  09. 


60  THE    SENATE    AND    TREATIES 

port  of  this  committee,  the  Senate  advised  that 
effectual  measures  should  be  taken  to  settle  the 
dispute  over  the  line.  They  suggested  that  the 
case  first  be  presented  to  Great  Britain,  and  that  if 
other  methods  of  amicable  settlement  failed,  the 
disputes  be  referred  to  commissioners  for  decision 
in  the  manner  advised  by  Jay  in  1785  in  the  report 
which  had  been  submitted  to  the  Senate  with  the 
message  of  February  9.^  The  advice  of  the  Senate 
seems  to  have  been  followed  by  no  immediate 
action.  It  is  interesting  to  note,  however,  that 
Article  V  of  the  Jay  treaty  provides  for  the  decision 
of  the  St.  Croix  River  boundary  practically  in  the 
manner  here  recommended. 

The  mission  of  Gouverneur  Morris,  to  which 
Washington  had  referred  in  his  first  message  to  the 
Senate,  had  disclosed  the  attitude  of  the  British 
ministry  towards  the  question  at  issue  between  the 
two  countries.  On  February  14,  1791,  the  House 
was  briefly  informed  that  by  informal  conferences 
it  had  been  ascertained  that  England  was  not  dis- 
posed to  enter  into  any  arrangements  merely  com- 
mercial.- On  the  same  day  Washington  put .  the 
Senate  in  full  possession  of  the  facts  concerning 
Morris's  mission,  laying  before  them  his  instruc- 
tions and  reports.^  Morris  had  been  commissioned 
to  prepare  the  way  for  a  fulfillment  of  the  treaty 
of  1783,  to  sound  the  ministry  on  the  subject  of  a 
commercial  convention,  and  to  urge  the  sending 
of  a  British  minister  to  the  United  States.     The 

1  Sen.  Exec.  Jour.,  I.  41-42. 

2  Richardson,  Messages,  I.  96. 

3  Ibid.;  Am.  State  Papers,  For  Rels.,  I.  121-127. 


THE    JAY    TREATY  61 

results  of  the  inissif)ii  weie  repoi-ted  as  being  un- 
satisfactory with  reference  to  the  first  two  of  its 
objects.  ^Morris  had  been  assured,  however,  that 
the  government  would  send  a  diplomatic  represen- 
tative to  this  country,  and  in  October,  1791,  George 
Hammond  was  received  as  minister  from  the  Court 
of  St.  James. ^ 

Hannnond,  however,  had  no  authority  to  negotiate 
a  settlement  of  any  of  the  points  at  issue,  and  during 
the  next  three  years  the  new  republic  and  the  ancient 
kingdom  drifted  steadily  towards  war.  The  old 
disputes  were  made  more  bitter  by  the  addition  of 
several  grievances  particularly  galling  to  the  United 
States.  One  of  these  grew  out  of  the  continued  re- 
tention by  the  British  of  the  border  posts,  which 
they  now  used  as  points  of  vantage  from  which  to 
incite  the  Indians  against  the  settlers  in  the  western 
territory.-  Friction  arose  from  the  destruction  of 
American  commerce  and  the  impressment  of  Ameri- 
can seamen  as  an  incident  of  the  war  between  Great 
Britain  and  France.  Then,  too,  many  citizens, 
particularly  among  those  who  hated  England  and 
loved  France,  blamed  the  British  for  the  renewed 
depredations  of  the  Algerine  pirates  on  our  Mediter- 
ranean commerce.  Public  feeling  was  aroused  to  a 
pitch  that  is  unknown  in  the  United  States  to-day. 

During  this  period  Washington  kept  both  houses 
of  Congress  well  informed  of  developments.  In 
February  he  laid  before  the  legislature   dispatches 

'■  Foster,  A  Century  of  American  Diplomucy,  p.  1.59. 

2  See  McLaughlin,  "Western  Posts  and  British  Debts,"  in 
American  Hislurical  Association  Report,  1894;  also  McLaughlin, 
The  Confederation  and  the  Constitution,  Ch.  VL 


62  THE    SENATE    AXD    TREATIES 

from  Pinckney  which  indicated  that  the  British 
government  had  small  intention  of  hastening  a 
settlement.  Correspondence  between  Randolph  and 
Hammond,  likewise  submitted,  showed  that  no 
progress  had  been  made  in  the  negotiations  proposed 
to  be  carried  on  at  Philadelphia.^  In  the  mean- 
time Jefferson's  long-expected  commercial  report 
recommending  reprisals  against  those  European 
nations  which  subjected  American  shipping  to 
harsh  regulations  had  been  laid  before  Congress.^ 
The  House  had  responded  by  receiving  favorably 
Madison's  resolutions  proposing  retaliatory  measures 
toward  Great  Britain.'^  At  the  same  time  the  ad- 
ministration was  preparing  for  eventualities  by 
proposing  to  provide  for  the  fortification  of  harbors, 
the  increase  of  the  navy,  and  the  strengthening  of 
the  army.  The  anti-English  party  in  the  country  and 
in  Congress  seemed  to  be  preparing  to  meet  Great 
Britain  more  than  halfway  on  the  road  to  war. 

Early  in  March  it  was  realized  that  matters  were 
approaching  a  crisis.  Washington's  face  was  set 
against  war  with  England,  however,  and  at  this 
juncture  a  small  group  of  the  most  influential  mem- 
bers of  the  Senate  came  forward  with  a  plan  once 
more  to  substitute  negotiations  for  hostilities. 
The  extent  to  which  this  group  of  Federalist  Sena- 
tors were  responsible  for  the  Jay  treaty,  the  cir- 
cumstances in  which  they  worked  to  secure  their 
ends,  and  the  manner  in  which  Senate  procedure 

1  A7n.  Slate  Papers,  For.  Rels.,  I.  327-328. 

2  Annals  of  Congress,  1793-1795,  p.  152. 

'  These  resolutions  were  introduced  January  3,  1794.  Ibid., 
p.  155  ct.  seq. 


THE   JAY   TREATY  63 

was  adapted  to  meet  theii-  needs  show  that  on  the 
first  occasi(Mi  upon  which  the  treaty-making  power 
was  the  point  of  stress  in  a  national  crisis,  it  was 
exercised  not  in  accordance  with  any  a  priori  theory 
but   as  the  necessities  of  the   moment   demanded. 
And  the  action  of  the  Senate  upon  this  treaty  during 
the    stages    which    preceded    its    signature,    more 
closely    approximates    modern    practice    than    does 
that  taken  upon  any  other  treaty  during  the  first 
decade  of  govermnent  under  the  Constitution. 
/    Oliver  Ellsworth  of  Connecticut,   George  Cabot 
and    Caleb    Strong    of    Massachusetts,    and    Rufus 
King  of  New  York  were  the  four  Senators  who,  to  a 
great  extent,  were  responsible  for  the  Jay  mission. 
I  With  them  was  associated  Robert  Morris  of  Pemi- 
sylvania.     Federalists  all,  they  were  the  backbone 
of   the   administration  party  in   the   Senate.     Five 
more  powerful  men  could  not  be  selected  from  the 
Senators  of  that  period.     The  fact  that  they  were 
accustomed  to  working  together  and  with  Washing- 
ton and  his  chief  advisers  made  them  an  effective 
unit.     Investigation  reveals  that  they  were  more  in- 
fluential  than    any    other    members    of    the    upper 
house  in  determining  the  action  of    that  body  in 
foreign  affau's   during  the  whole   of  Washington's 
admmistrations. 

The  time  at  which  these  men,  or  any  of  them, 
began  to  consider  the  possibility  of  a  British  mission 
has  not  been  ascertained.  There  is  reliable  evidence, 
however,  that  early  in  March  some  such  plan  was 
well  advanced.^     By  March  10  the  project  was  so 

1  Brown,  Life  of  Oliver  Ellsworth,  pp.  213-214.  Here  is  given 
an  excellent  account  of  Ellsworth's  activity  in  connection  with  the 


64  THE  SENATE  AND  TREATIES 

well  matured  that  the  leaders  in  the  movement  met 
in  King's  room  to  consider  what  action  should  be 
taken  in  the  emergency  caused  by  the  capture  and 
condemnation  of  American  vessels  in  the  West 
Indies.  What  transpired  at  this  meeting  is  best 
told  in  the  words  of  Rufus  King  himself.  Under 
date  of  March  10,  he  wrote  :^ 

The  order  of  Britain  of  the  6th  Nov.,  authorizing  the 
seizing  and  sending  in  of  American  vessels  for  adjudica- 
tion, having  produced  by  the  great  number  of  captures 
in  the  West  Indies,  the  most  alarming  irritation  in  the 
middle  and  eastern  states  (more  than  200  sail  having 
been  taken  and  nearly  half  that  number  having  been 
condemned),  the  faction  opposed  to  the  government 
having  taken  hold  of  the  circumstances  to  embarrass 
and  derange  the  administration  - —  Ellsworth,  Cabot  and 
Strong  met  at  my  room  in  order  to  confer  on  the  course 
most  advisable  to  pursue. 

The  Result  was  that  Ellsworth  should  go  the  next 
day  to  the  President,  that  he  should  represent  to  him 
that  the  crisis  was  alarming;  that  war  might  and  prob- 
ably would  be  the  consequence  of  these  aggressions  of 
England,  unless  some  system  calculated  to  calm  the  public 

Jay  treaty.  A  detailed  account  of  the  genesis  of  the  Jay  mission  is 
given  in  Hamilton,  History  oj  the  Republic  of  the  United  States  of 
America,  V.  cviii,  civ.  The  author  views  the  entire  transaction 
largely  from  Hamilton's  viewpoint,  but  his  statements  are  based  on 
contemporaneous  sources,  in  part  on  the  manuscript  of  Rufus 
King,  to  which  reference  is  made  below.  Reference  also  is  made  to 
Lodge,  Life  and  Letters  of  George  Cabot,  Chs.  HI,  IV,  where  Cabot's 
career  in  the  Senate  is  traced;  to  an  essay,  "  Oliver  Ellsworth,"  by  the 
same  author,  in,  A  Fighting  Frigate  and  Other  Essays  and  Addresses, 
pp.  86^89;  and  to  Gibbs,  Memoirs  of  the  Administrations  of  Wash- 
ington and  John  Adams,  I.  V.  Here  appears  original  material  in 
the  form  of  letters  to  and  from  Oliver  Wolcott. 

1  Rufus  King's  manuscript,  a  contemporary  diary  or  record 
written  by  King  and  published  in  Charles  R.  King,  Life  and  Cor- 
respondence of  Rufus  King,  I.  .517-519. 


THE    JAY    TREATY 


65 


niiiul.  as  well  as  the  public  councils,  was  speedily  adopted 
—  to  avoid  that  scourge  and  to  save  the  national  honor, 
as  well  as  to  procure  indemnification  for  the  wrongs  that 

our  merchants  had  already  suffered.   .   .  . 

Ellsworth  then  was  to  suggest  the  adoption  of 
vigorous  measures  for  defense,  the  sending  of  an 
agent  to  the  West  Indies  to  report  on  the  situation 
there,  and 

that  further  an  envoy  extraordinary  should  be  appointed 
and  sent  to  England  to  require  satisfaction  for  the  loss 
of  our  Property  and  to  adjust  these  points  which  menaced 
a  war  between  the  two  countries. 

Hamilton  was  to  be  suggested  as  the  man  most 
likely  to  succeed  on  such  a  mission.^ 

How  Ellsworth  fared  with  the  President  is  recorded 
in  King's  diary  for  March  12,  as  follows: 

Ellsworth  executed  the  mission  agreed  on  upon  the 
10th  instant.  The  President  was  at  first  reserved  — 
finally  more  communicative  and  apparently  impressed 
with  Ellsworth's  representation.  Some  doubts  were 
suggested  respecting  the  character  —  that  Col.  Hamilton 
did  not  possess  the  general  confidence  of  the  country  — 
that  there  could  be  no  doubts  in  his,  the  President's 
mind  but  that  their  existence  was  of  some  consequence.^ 

On  this  same  day  King  "intimated  to  R.  :\Iorris 
the  purport  of  Ellsworth's  mission  to  the  President 
—  and  proposed  that  he  should,  if  occasion  offered, 
support-^  it  —  he  consented  to  do  so."  ^  ^lorris 
kept  his  word  and  lent  his  powerful  influence  to 
secure  negotiation  as  a  substitute  for  war.  And 
during  the  next  month  the  proposition  advanced 

'  Lije  and  Correspondence  of  /?«/»«  King,  I.  517-519. 
2  Ibid.  *  i^id- 


66  THE    SENATE    AND    TREATIES 

by  Ellsworth  and  his  colleagues  needed  all  the 
support  that  it  could  command.  The  whole  project 
of  a  mission  was  bitterly  assailed  by  all  Republicans 
and  many  Federalists.  Furthermore,  Washington 
had  unerringly  divined  the  weakness  of  Hamilton 
in  the  role  of  envoy  to  England.  The  proposal  to 
nominate  him  raised  such  a  storm  of  protest  that 
finally  it  became  evident  that  from  a  political 
standpoint,  his  appointment  was  impossible.  On 
April  8  Washington  told  Morris  that  he  had  thought 
of  the  Vice-President,  Hamilton,  Jay  and  Jefferson 
for  the  task.^  The  attitude  of  the  five  Senators 
seems  to  have  been,  Hamilton  if  possible,  if  not, 
then  Jay.-  Together  with  Hamilton  they  finally  ac- 
quiesced in  the  selection  of  the  Chief  Justice,  and 

1  Life  and  Correspondence  of  Rufus  King,  I.,    p.  519. 

2  "Ap.  12.  Mr.  Jay  arrived  to  hold  a  circuit  Court  in  Phila.  ^ 
he  came  to  my  room,  the  conversation  soon  turned  to  the  present 
situation  of  the  Country.  I  told  him  that  the  object  of  the  Friends 
of  peace  was  such  as  was  agreed  between  Ellsworth,  Cabot,  Strong 
and  myself  on  the  10.  Mar.;  that  I  had  heard  from  the  Pr.  had 
mentioned  the  Vice  President,  Hamilton,  .Jefferson  and  him  as 
persons  whom  he  had  thought  of  for  the  Envoyship;  that  his  friends 
were  decided  that  it  must  be  him  or  Hamilton. 

"  That  so  far  as  regarded  the  particular  knowledge  of  the  Cabinet, 
and  the  details  of  Commerce,  Hamilton  might  deserve  a  preference. 
But  that  in  other  respects  we  should  be  perfectly  satisfied  with 
him;  that  these  points  were  not  very  important,  and  if  on  the  other 
hand,  we  consider  weight  of  character  abroad  as  well  as  at  home, 
his  appointment  might  be  more  advantageous  than  that  of  Hamilton. 
Besides  that  Hamilton  was  essential  in  his  present  station.  Mr. 
Jay  gave  no  Reply  resi)ecting  himself  but  appeared  fully  to  agree 
in  the  Propriety  of  Hamilton's  appointment. 

"  We  conversed  respecting  the  Resolution  before  the  House  for 
cutting  off  commercial  intercourse  and  sequestering  British  Debts. 
He  joined  me  in  opinion  that  they  would  frustrate  all  negotiations 
and  said  he  should  tell  the  President  so  when  he  saw  him."      Ibid. 


THE   JAY   TREATY  67 

on  the  fourteenth,  HamiUon  addressed  a  long  letter 
to  Washington  urging  the  necessity  of  the  mission, 
setting  forth  the  dangerous  character  of  the  House 
propositions  for  commercial  and  other  reprisals, 
withdrawing  his  name  from  consideration,  and  urg- 
ing the  appointment  of  Jay.'  Thus  it  was  decided 
that  Jay  should  be  the  envoy.  King  records  that 
on  April  15  Hamilton,  Strong,  Cabot,  Ellsworth, 
and  himself  waited  upon  the  Chief  Justice  to  urge 
his  acceptance  of  the  post.-  That  night  in  a  very 
grave  letter  Jay  informed  his  wife  that  there  was 
"here  a  serious  determination  to  send  me  to  England, 
if  possible  to  avert  a  war."  And  he  declared  that 
if  on  investigation  he  should  be  convinced  that  it 
was  his  duty  to  go  he  would  accept  the  appointment.* 

1  Thi-  Works  of  Alexander  HmMlton,  V.  97-115;  also,  Hamilton 
History  of  the  Republic,  V.  544-554 

2  King  wrote,  "Hamilton,  Strong,  Cabot,  Ellsworth  and  myself 
went  to  Mr.  Jay  this  afternoon  to  press  upon  him  the  necessity 
which  exists  that  he  should  not  dechne  the  Envoyship;  that  in 
short  he  was  the  only  man  in  whom  we  could  confide,  and  that  we 
deemed  the  situation  of  the  Country  too  interesting  and  critical 
to  permit  him  to  hesitate. 

"He  did  not  decline.  We  urged  the  idea  that  he  should  reinforce 
the  opinion  that  the  measures  before  the  House  wd.  disappoint  the 
objects  sought  for  in  the  appointment  —  and  that  he  could  not 
consent  to  be  Envoy  charged  with  complaint  and  menace."  Life 
and  Correspondence  of  Rufus  King,  I.  520. 

^  The  gravity  of  the  situation  at  this  time  is  strikingly  shown 
by  two  letters  from  John  Jay  to  his  wife.  On  April  9  he  wrote: 
"I  arrive^  here  on  Monday  evening,  and  yesterday  dined  with  the 
President.  The  question  of  war  or  peace  seems  to  be  as  much  in 
susi)ension  here  as  in  New  York  when  I  left  you.  I  am  rather 
inclined  to  think  that  peace  will  continue,  but  should  not  be  sur- 
prised if  war  should  take  place.  In  the  present  state  of  things,  it  will 
be  best  to  be  ready  for  the  latter  event  in  every  res|)ect." 

And  on  April  10:  "The  aspect  of  the  times  is  such,  that  prudential 
arrangements  calculated   on   the   prospect  of  war  should   not   be 


68  THE    SENATE   AND   TREATIES 

Consideration  over  night  evidently  convinced  him 
that  he  should  do  so,  for  on  the  following  day 
Ohver  Ellsworth  wrote  to  his  friend  Oliver  Wolcott, 
saying  that  Jay  had  just  informed  him  of  his  de- 
termmation  to  accept  the  appointment  if  it  should 
be  made.^ 

In  the  meantime  Washington  had  decided  upon  his 
course  of  action.  On  the  evening  of  the  fom-teenth 
he  had  requested  Randolph  to  draw  up  a  message 
to  submit  the  plan  and  the  nomination  to  the  Senate. 
Early  the  following  morning  he  asked  if  the  docu- 
ment would  be  ready  by  11  o'clock  in  order  that  it 
might  be  laid  before  ''the  gentlemen  with  whom  I 
usually  advise  on  these  occasions."  -      Twenty-four 

neglected,  nor  too  long  postponed.  Peace  or  war  appears  to  me 
a  question  which  cannot  be  solved.  .  .  .  There  is  much  irritation 
and  agitation  in  this  town,  and  in  Congress.  Great  Britain  has 
acted  unwisely  and  unjustly;  and  there  is  some  danger  of  our  acting 
intemperately."  Correspondence  and  Public  Papers  of  John  Jay, 
IV.  2,  3. 

1  Ellsworth  to  Oliver  Wolcott,  April  16,  1794.  Gibbs,  Memoirs 
of  the  Administrations  of  Washington  and  Adams,  I.  135. 

2  Washington-Randolph,  April  15,  1794,  Washington's  Writings 
XII.  419.  It  is  interesting  to  note  that  at  this  moment  Washington 
was  considering  laying  before  the  Senate  the  outline  of  the  entire 
plan  of  action  which  he  thought  it  would  become  necessary  to 
follow  should  the  Jay  mission  fail.  Continuing  in  his  letter  to 
Randolph,  he  said:  "My  objects  are,  to  prevent  a  war,  if  justice 
can  be  obtained  by  fair  and  strong  representations  (to  be  made  by 
a  special  envoy)  of  the  injuries  which  this  country  has  sustained 
from  Great  Britain  in  various  ways,  to  put  it  in  a  complete  state 
of  miUtary  defence,  and  to  provide  eventually  for  such  measures  as 
seem  now  to  be  pending  in  Congress  for  execution,  if  negotiation 
in  a  reasonable  time  proves  unsuccessful. 

"Such  is  the  train  of  my  thoughts;  but  how  far  all,  or  any  of 
them,  except  the  first,  ought  to  be  introduced  into  the  message,  in 
the  present  stage  of  the  business  in  Congress,  deserves,  as  I  have 
said  before,  due  consideration."     The  message  sent  in  on  the  day 


THE    JAY   TREATY  09 

hours  later,  April  16,  1794,  the  message  nominating 
Jay  as  Envoy  Extraordinary  of  the  United  States 
to  his  Britannic  ^Majesty  was  sent  to  the  Senate.^ 
The  President  had  done  his  part  towards  carrying 
out  the  plan  suggested  by  the  five  Senators.  It 
now  remained  for  them  to  secure  the  consent  of 
their  colleagues  to  the  mission.  This  proved  to  be 
a  task  as  interesting  as  it  was  difficult. 

The  minority  in  the  Senate  based  their  opposition 
to  confirmation  upon  three  grounds.  They  main- 
tained: first,  that  it  was  unnecessary  and  inex- 
pedient to  dispatch  an  envoy  extraordinary  to 
carry  on  a  negotiation  that  could  be  as  well  or 
better  conducted  by  Thomas  Pinckney,  Minister  of 
the  United  States  at  London;  second,  that  the 
Chief  Justice  of  the  United  States  should  not  be 

following  was  limited  to  the  subject  of  negotiation  and  the  nomi- 
nation of  Jay  as  envoy.     Ibid. 

1  The  Message  was  as  follows:  "Gentlemen  of  the  Senate:  The 
communications  which  I  have  made  to  you  during  your  present 
session,  from  the  despatches  of  our  Minister  in  London,  contain  a 
serious  aspect  of  our  affairs  with  Great  Britain.  But  as  peace 
ought  to  be  pursued  with  unremitted  zeal,  before  the  last  resource, 
which  has  so  often  been  the  scourge  of  nations,  and  cannot  fail  to 
check  the  advanced  i)rosperity  of  the  United  States,  is  contemplated; 
I  have  thought  proper  to  nominate,  and  do  hereby  nominate, 
John  Jay,  as  Envoy  Extraordinary  of  the  United  States,  to  his 
Britannic  Majesty. 

•'My  confidence  in  our  Minister  Plenipotentiary  at  London, 
continues  undiminished.  But  a  mission  like  this,  while  it  cor- 
responds with  tlie  solemnity  of  the  occasion,  will  announce  to  the 
world  the  solicitude  for  a  friendly  adjustment  of  our  complaints, 
and  a  reluctance  to  hostility.  Going  immediately  from  the  United 
States,  such  an  Envoy  will  carry  with  him  a  full  knowledge  of  the 
existing  temi)er  and  sensibihties  of  our  country,  and  will  thus  be 
taught  to  vindicate  our  rights  with  firmness,  and  to  cultivate  peace 
with  sincerity."  Sen.  Exec.  Jour.,  I.  150. 
t 


70  THE  SENATE  AND  TREATIES 

sent  to  negotiate  a  treaty  which  might  later  come 
before  him  for  judicial  consideration;^  third,  that 
John  Jay  held  opmions  against  the  interest  and  just 
claims  of  his  country  which  rendered  it  unwise  to 
entrust  to  him  the  task  of  securing  justice  from  Great 
Britain.-  Thus  the  Senate  debated  and  passed  not 
only  upon  the  choice  of  the  envoy  but  also  upon 
the  expediency  of  the  mission  itself. 

It  did  not,  however,  have  an  opportunity  either 
to  approve  or  to  disapprove  of  the  proposals  which 
Jay  was  to  make  to  England,  although  the  pre- 
cedents might  have  led  it  to  expect  that  his  instruc- 
tions would  be  laid  before  it.  On  April  16  King 
wrote,  ''From  the  difficulty  of  passing  particular 
instructions  in  the  Senate,  it  seems  to  me  the  most 
suitable  that  the  Pr.   shd.   instruct,   and  that  the 

1  The  final  attempt  to  prevent  or  delay  the  confirmation  of  Jay's 
nomination  was  made  by  the  introduction  of  a  motion  by  Burr  to 
postpone  its  consideration  for  the  purpose  of  considering  the  fol- 
lowing: 

"Resolved,  That  any  communications  to  be  made  to  the  Court 
of  Great  Britain  may  be  made  through  our  Minister  now  at  that 
Court,  with  an  equal  facihty  and  effect,  and  at  much  less  expense, 
than  by  an  Envoy  Extraordinarj-;  and  that  such  an  appointment 
is  at  present  inexpedient  and  unnecessary. 

"That  to  permit  Judges  of  the  Supreme  Court  to  hold  at  the  same 
time  any  other  office  or  employment,  emanating  from  and  holden 
at  the  pleasure  of  the  Executive,  is  contrary  to  the  spirit  of  the 
Constitution,  and,  as  tending  to  expose  them  to  the  influence  of  the 
Executive  is  mischievous  and  impohtic."  This  motion  failed  10 
to  17.  Sen.  Exec.  Jour.,  I.  1.52.  Also  Life  and  Correspondence  of 
Rufus  King,  I.  522. 

2  Ldfe  and  Correspondence  of  Rufus  King,  I.  521;  Sen.  Exec. 
Jour.,  I.  150-153;  Hamilton,  History  of  the  Republic,  V.  cv.,  Trescot, 
Diplomatic  History  of  the  Administrations  of  Washington  and  Adarns, 
pp.  101-105,  gives  an  excellent  discussion  of  the  objections  raised 
to  the  choice  of  Jay  for  this  mission. 


THE    JAY    TREATY  71 

Treaty  shd.  be  concluded  subject  to  the  approba- 
tion of  the  Senate."  ^  FederaHst  leaders  were  not 
unprepared  then  when,  on  the  day  following,  a 
motion  was  introduced. 

That  previous  to  s<>ing  into  the  nomination  of  a  special 
Envoy  to  the  C'ourt  of  Great  Britain,  the  President  of 
the  United  States  be  requ(>sted  to  inform  the  Senate  of 
the  whole  business  with  which  the  proposed  Envoy  is 
to  be  charged. 

They  promptly  secured  the  rejection  of  the  propo- 
sition.- 

The  feeling  which  then  existed  both  in  and  out 
of  Congress  w^as  such  that  the  ''difficulty  of  passing 
particular    instructions    in    the    Senate"    certainly 
would  have  been  great.     Indeed  it  is  unlikely  that 
the  Senate  could  have  been  brought  to  agree  to  any 
detailed    plan    that    Washington    and    his    advisers 
might    have  submitted.     In  these  circumstances  it 
was  evidently  recognized  that  if   the    Senate  was  | 
to  serve  as  a  ''council  of  advice"  in  such  a  delicate 
matter  it  must  be  through  a  small  number  of  its , 
members  in  whom  both  the  executive  and  a  majority  ^| 
of  their  colleagues  had  great  confidence.     In  later  ; 
years  this  became  the  normal  mode  of  procedure. 
The  significance  of  the  precedent  set  in  this  instance 
will  be  discussed  more  fully  in  connection  with  the 
ratification  of  the  treaty. 

After  three  days  of  discussion  Jay's  nomination 
was  confirmed.^  The  minority  attempted  without 
success  to  obtain  the  passage  of  a  resolution  that  in 
executive   business  the  minority   on   any   question 

'  Life  and  Correspondence  of  Rufns  King,  I.  521. 
2  Sen.  Exec.  Jour.,  I.  151.  '  Ibid.,  I.  152. 


72  THE  SENATE  AND  TREATIES 

might  enter  their  objections  in  the  journals.^  It 
will  be  remembered  that  a  similar  resolution  in- 
troduced at  the  tune  of  the  confirmation  of  the  Creek 
treaty  of  1790  failed.- 

It  now  remained  to  instruct  the  envoy  and  to 
dispatch  him  to  England.  In  this  phase  of  the 
business  the  Senatorial  group  still  exercised  a  power- 
ful if  not  a  predominant  influence.  King's  diary 
records  under  date  of  April  21  that  Hamilton, 
Ellsworth,  Cabot,  and  he  met  with  Jay  to  discuss 
the  subject. 

All  agreed  that  as  the  Pr.  might  give  the  instructions 
without  consulting  the  Senate,  it  would  be  most  advisable 
so  to  conduct  the  business,  and  that  the  Treaty,  if  any 
shd.  be  formed,  should  be  signed  subject  to  the  approba- 
tion of  the  Senate.^ 

The  question  of  spoliations  on  American  commerce 
and  that  of  the  execution  of  the  old  treaty  were 
considered,  as,  indeed,  was  the  entire  field  of  the 
proposed  negotiation.     In  King's  words. 

Various  propositions  relative  to  a  commercial  Treaty, 
the  posts,  the  Indian  trade,  the  navigation  of  the  Lakes,  the 

West  Indies,  etc.,  etc.,  were  also  discussed  —  and  Mr. 

stated  his  conversation  with  the  Secretary  of  State  who 
appeared  disposed  to  leave  the  negotiation  open  and  the 
powers  of  the  envoy  very  discretionary.' 

1  Sen.  Exec.  Jour.,  I.  152,  153.  ^  See  p.  29  above. 

3  Life  and  Correspondence  of  Rufus  King,  I.  523. 

This  general  principle  was  the  one  acted  upon  by  Randolph  in 
framing  the  instructions,  part  XI.  of  which  contains  the  following 
words:  You  will  therefore  consider  the  ideas,  herein  expressed,  as 
amounting  to  recommendations  only,  which  in  your  discretion  you 
may  modify,  as  seems  most  beneficial  to  the  United  States,  except 
in  the  two  following  cases,  which  are  immutable."  Then  follow 
references  to  his  instructions  on  the  relations  of  the  United  States 


THE    JAY   TREATY  73 

It  is  not  unlikely  that  other  informal  conferences 
were  held  between  the  leaders  of  the  Senate  and 
executive  officials  before  the  instructions  which 
Randolph  handed  to  Jay,  ]\Iay  G,  were  finally  com- 
pleted. Hamilton  himself  had  a  large  part  in 
drafting  the  instructions,  and  before  Jay's  departure 
submitted  his  views  to  hmi  very  fully  in  a  long 
letter  covering  many  of  the  most  important  problems 
to  be  solved.^  The  entire  procedure,  certainly,  is 
very  similar  to  that  by  which  it  later  became  cus- 
tomary to  consult  the  Senate  through  the  Committee 
on  Foreign  Relations  before  any  important  negotia- 
tion was  embarked  upon.'- 

to  France,  and  on  a  commercial  treaty.  Am.  State  Papers,  For. 
Rels.,  I.  474. 

Hamilton's  low  opinion  of  these  instructions  and  the  degree  to 
whioh  the  senatorial  group  depended  upon  the  inchnation  and 
abiUty  of  Jay  to  carry  out  the  measures  upon  which  they  had  agreed 
is  strikingly  exhibited  by  the  following  paragraph  in  a  letter  written 
to  Washington  after  the  signature  of  the  treaty:  "I  mentioned  as 
my  opinion  that  the  instructions  to  Mr.  Jay,  if  published,  would  do 
harm.  The  truth,  unfortunately,  is  that  it  is  in  general  a  crude 
mass,  which  will  do  no  credit  to  the  administration.  This  was  my 
impression  of  it  at  the  time,  but  the  delicacy  of  attempting  too  nmch 
reformation  in  the  work  of  another  head  of  department,  the  hurry 
of  the  moment;  and  a  great  confidence  in  the  person  sent,  pre- 
vented my  attempting  that  reformation.  Hamilton  to  Washington, 
March  28,  1796.     Works  of  Alexander  Hamilton,  X.  152-153. 

As  a  member  of  the  cabinet,  however,  Hamilton  had  a  part  in 
drawing  up  these  instructions,  submitting  memorandums  of  points 
to  be  included  in  them,  and  partial  drafts  upon  the  commercial 
sections  to  Washington  and  Randolph.  Hamilttjn  to  Washington, 
April  2.3,  1794;  Hamilton  to  Randoljjh,  April  27,  1794;  Draft  of 
part  of  instructions  to  Jay.  Ibid.,  V.  11.5-123;  See  also,  Hamilton, 
History  of  the  Rtpublic,  VI.  c.vvii. 

1  Hamilton  to  Jay,  May  6,  1794.  Works  of  Alexander  Hamilton, 
V.  123-128. 

*  It  is  pointed  out  by  William  Garrott  Brown  that  on  November 
19,  the  day  upon  which  the  treaty  was  signed  besides  letters  to 


74  THE    SENATE    AND    TREATIES 

It  was  in  April,  1794,  that  the  Senate  finally 
confirmed  the  nomination  of  the  special  envoy. 
Eleven  months  later,  on  the  seventh  of  IVIarch^ 
1795,  the  Jay  treaty  was  placed  in  the  hands  of 
the  President.^  Congress  had  adjourned  four  days 
previously.  But  before  the  Senators  had  left  Phila- 
delphia Washington  had  issued  a  proclamation  re- 
questing them  to  assemble  in  special  session  on 
June  8.^  Upon  the  appointed  day  he  was  informed 
that  the  Senate  was  ready  to  receive  any  communi- 
cations he  might  care  to  make,  the  treaty  was 
transmitted,  and  the  fight  for  ratification  was  on. 

It  is  not  considered  to  be  within  the  scope  of  this 
study  to  trace  in  detail  the  political  struggle  over 
the  Jay  treaty  either  in  Congress  or  out  of  it.  It 
is  deemed  important,  however,  to  outline  the  most 
significant  steps  in  the  procedure  by  which  the 
Senate  finally  advised  and  consented  to  ratification 
with  the  condition  that  the  twelfth  article  be  sus- 
pended; to  estimate  the  degree  to  which  the  domi- 
nant group  of  Federalist  statesmen  were  responsible 

Washington  and  Edmund  Randolph,  Secretary  of  State,  Jay  wrote 
to  Hamilton,  King,  and  Ellsworth,  making  a  kind  of  brief  report 
to  each.  Brown,  Life  of  Oliver  Ellsworth,  217.  Correspondence  and 
Public  Papers  of  Jay,  IV.  132-149. 

1  McMaster,  History  of  the  People,  II.  213. 

-  Richardson,  Messages,  I.  587.  Several  months  later  in  a  letter 
to  Monroe  relating  what  had  occurred  Madison  states,  "The  Treaty 
concluded  by  him  did  not  arrive  until  a  few  days  after  the  3rd.  of 
March  which  put  an  end  to  the  last  session  of  Congress.  .  .  .  Ac- 
cording to  previous  notification  to  the  Senators  that  branch  as- 
sembled on  the  28th  (in)  of  June,  the  contents  of  tlie  Treaty  being 
in  the  meantime  impenetrably  concealed.  I  understand  it  was 
even  withheld  from  the  Secretaries  of  War  and  the  Treasury,  that 
is  Pickering  and  Wolcott."  Madison  to  Monroe,  December  20 
1795,  Writings  of  James  Madison  (Hunt  edition),  VI.  257-258. 


THE   JAY   TREATY  75 

for  this  action;  to  examine  the  methods  by  which 
Burr  and  his  associates  opposed  ratification;  and 
to  observe  the  manner  in  which  the  Senate  at- 
tempted to  guard  the  secrecy  of  its  proceedings. 

The  first  move  of  the  opponents  of  ratification 
was  ail  attempt  to  secure  the  pubhcation  of  the  treaty 
and  the  instructions  under  which  it  had  been  nego- 
tiated. For  five  days  after  June  8  the  contest  was 
over  this  question. ^  On  the  thirteenth  the  Repub- 
licans abandoned  this  line  of  attack  and  the  debate 
was  turned  to  the  provisions  of  the  treaty  itself.- 
It  soon  became  evident  that  the  twelfth  article  was 
the  vulnerable  point  in  the  product  of  Jay's  en- 
deavors, and  on  the  sixteenth  it  was  agreed  that  it 
should  not  be  taken  up  until  the  rest  of  the  treaty 
had  been  discussed.^ 

It  is  significant  that  the  proposition  to  amend  the 
treaty  by  the  addition  of  an  article  suspending  so 
much  of  this  twelfth  article  as  related  to  the  trade 
between  the  United  States  and  the  British  West 
Indies  originated  not  from  the  enemies  of  the 
treaty  but  from  its  friends.  It  is  hardly  accurate 
to  say  that  the  opposition  Senators  succeeded  in 
striking  out  this  article.^  In  fact,  the  suggestion 
that  the  Senate  advise  ratification  with  this  condi- 
tion seems  to  have  come  from  the  very  group  that 
was  so  largely  responsible  for  the  mission  itself. 
Before  the  Senate  had  convened,  Hamilton  had 
written  to  WiUiam  Bradford,  Senator  from  Rhode 
Island,  telling  him  that  the  commercial  agreement 
in  the  treaty  displeased  him  and  declaring  that  he 

'  See  pp.  88-91  below.  2  Sen.  Exec.  Jour.,  I.  181-182. 

3  Ibid.,  I.  182.  *  Brown,  Life  of  Oliver  Ellsworth,  p.  218. 


76  THE  SENATE  AND  TREATIES 

preferred  a  conditional  ratification  to  an  unqualified 
acceptance  of  the  instrument.^  Three  days  after 
the  debate  had  commenced  Hamilton  also  wrote 
to  Rufus  King  advising  the  same  course.^  On  June 
17  a  resolution  was  introduced  giving  the  advice 
and  consent  of  the  Senate  to  ratification, 

on  condition  that  there  shall  be  added  to  the  said  treaty 
an  article  whereby  it  shall  be  agreed  to  suspend  the  opera- 
tion of  so  much  of  the  12th  article  as  respects  the  trade 
which  his  said  Majesty  thereby  consents  may  be  carried 
on  between  the  United  States  and  his  islands  in  the  West 
Indies  in  the  manner,  and  on  the  terms  and  conditions 
therein  specified. 

And  the  Senate  recommend  to  the  President,  to  pro- 
ceed without  delay,  to  further  friendly  negotiations  with 
his  Majesty,  on  the  subject  of  the  said  trade,  and  of  the 
terms  and  conditions  in  question. ^ 

This  resolution  is  said  to  have  been  introduced 
by  King  himself.^  Considering  the  care  with  which 
he  and  his  friends  controlled  every  step  towards 
the  consummation  of  their  end,  this  was  probably 
the  case.  At  any  rate  it  formulated  the  course 
which  they  had  determined  to  follow. 

After  the  seventeenth  two  major  moves  were  made 
to  prevent  ratification,  and  in  addition  there  was  one 
serious  attempt  to  couple  with  the  recommendation 
of  further    negotiations  on  the  West  India  trade 

1  Works  of  Alexander  Hamilton,  X.  99. 

2  Ihid.,  p.  101.  See  Hamilton,  HiMory  of  the  Republic,  VI.  cxviii, 
for  discussion  of  Hamilton's  part  in  securing  the  ratification  of  the 
treaty. 

3  Sen.  Exec.  Jour.,  I.  182. 

*  King,  Life  and  Correspondence  of  Rufus  King,  II.  9-10.  The 
author  makes  this  statement  in  guarded  form,  and  gives  no  evidence 
to  substantiate  it. 


THE    JAY    TREATY  i  i 

a  similar  recommendation  with  reference  to  com- 
pensation for  negroes  or  other  American  property 
carried  away  in  violation  of  Article  VII  of  the 
treaty  of  peace. ^  While  the  way  was  being  pre- 
])ared  for  these  propositions  the  President  at  the 
request  of  the  Senate  sent  in  various  documents 
bearing  upon  the  treaty .- 

On  the  twenty-second  Burr  introduced  the  motion 
upon  which  the  real  trial  of  strength  between  the 
parties  was  to  be  made.  This  motion  may  be  con- 
sidered to  express  the  opinion  of  at  least  a  large 
number  of  Senators  as  to  the  lengths  to  which  it 
was  proper  for  the  Senate  to  go  in  advising  the 
President  to  secure  specific  amendments  to  a  treaty 
by  means  of  new  negotiations.  Burr  moved  the 
following  resolution:  . 

That  the  further  consideration  of  the  treaty  concluded 
at  London,  the  19th  of  November,  1794,  be  postponed, 
and  that  it  be  recommended  to  the  President  of  the 
United  States,  to  proceed  without  delay  to  further  friendly 
negotiations  with  his  Britannic  Majesty,  in  order  to  effect 
alterations  in  the  said  treaty,  in  the  following  particulars: 

Then  followed  seven  propositions  involving  the 
amendment  or  excision  of  ten  articles  in  the  treaty 
as  signed.^     The  alterations  requested  represented 

1  Sen.  Exec.  Jour.,  I.  183.  ^  Ibid. 

'  The  alterations  recommended  were  as  follows: 

"That  the  9th,  10th,  and  24th  articles,  and  so  much  of  the  2oth 
as  relates  to  the  shelter  of  refuge  to  be  given  to  the  armed  vessels 
of  States  or  Sovereigns  at  war  with  either  party  be  expunged. 

2d  art.  That  no  privilege  or  right  be  allowed  to  the  settlers  or 
traders  mentioned  in  the  2d  article,  other  than  those  which  are 
secured  to  them  by  the  treaty  of  1783,  and  existing  laws. 

3d  art.  That  the  third  article  be  expunged,  or  be  so  modified 
that  the  citizens  of  the  United  States  may  have  the  use  of  ail  rivers, 


78  THE  SENATE  AND  TREATIES 

the  demands  of  the  anti-administration,  anti-British 
party.  So  far  as  their  practicabihty  was  concerned, 
the  President  might  as  well  have  been  advised  to 
secure  the  cession  of  Canada  to  the  United  States/ 
Nevertheless  they  were  supported  by  the  ten  Sena- 1 
tors  who  acted  together  in  every  attack  upon  the 
treaty.  The  vote  against  the  adoption  of  the  reso- 
lution was  20  to  10.^ 

But  although  Burr's  proposal  was  defeated  there 
is  nothing  to  indicate  that  the  rejection  was  not 
based  purely  upon  expediency  and  not  at  all  upon 
the  impropriety  of  the  recommendation  that  the 
President  make  a  new  treaty  in  accordance  with 
the  ideas  of  the  Senate.     In  fact,  a  resolution  of 

ports  and  places  within  the  territories  of  His  Britannic  Majesty 
in  North  America,  in  the  same  manner  as  his  subjects  may  have 
those  of  the  United  States. 

"6th  art.  That  the  value  of  the  negroes  and  other  property 
carried  away,  contrary  to  the  7th  article  of  the  treaty  of  1783, 
and  the  loss  and  damage  sustained  to  the  United  States  by  the  detention 
of  the  posts,  be  paid  for  by  the  British  government;  the  amount  to 
be  ascertained  by  the  Commissioners  who  may  be  appointed  to 
liquidate  the  claims  of  the  British  creditors. 

"12th  art.  That  what  relates  to  the  West  India  trade,  and  the 
provisions  and  conditions  thereof,  of  the  12th  article,  be  expunged, 
or  be  rendered  more  favorable  to  the  United  States,  and  without 
any  restraint  on  the  exportation,  in  vessels  of  the  United  States, 
of  any  articles,  not  the  growth,  produce,  or  manufacture  of  the 
said  islands  of  his  Britannic  Majesty. 

"15th  art.  That  no  clause  be  admitted  which  may  restrain 
the  United  States  from  reciprocating  benefits  by  discriminating 
between  foreign  nations  in  their  commercial  arrangements,  or  pre- 
vent them  from  increasing  the  tonnage  or  other  duties  on  British 
vessels,  on  terms  of  reciprocity,  or  "in  stipulated  ratio. 

"21st  art.  That  the  subjects  of  citizens  of  either  party,  be  not 
restrained  from  accepting  commissions  in  the  army  or  navy  of  any 
foreign  power."     Sen.  Exec.  Jour.,  I.  183-184. 

1  Sen.  Exec.  Jour.,  I.  184. 


THE    JAY    TREATY  79 

similar  form  had  been  passed  in  1793  in  connection 
with    General    Putnam's   treaty   with    the   Wabash 
and    Illinois    Indians.'     The   Senate   had   not   been 
formally    consulted    as    to    the    instructions    under 
which  Jay  acted.     It  had  been  so  consulted  prior 
to   the   negotiation   of   other    treaties  —  had    been 
treated  as  a  ''council"  whose  advice  ought  to  be 
sought    before    a    treaty   was    negotiated.     Taking 
these  facts  into  consideration,  Bun's  resolution  was 
in  full  accord  with  the  accepted  theory  of  the  posi- 
tion of  the  Senate  in  treaty-making.     So  far  as  a 
treaty  with  Great  Britain  was  concerned  the  adop- 
tion of  such  a  resolution  would  have  made  a  treaty 
impossible,  which  of  course  is  the  political  reason 
which  caused  the  Federalists  to  reject  the  proposal. 
It  is  probable  that  the  passage  of  this  resolution 
would  have  modified  the  subsequent    development 
and  exercise  of   the   treaty-making   powers  of   the 
Senate.     Washington   might   well   have   considered 
such  an  act  as  notice  that,  in  the  future,  the  Senate 
would  expect  to  participate  in  the  determination  of 
the  conditions  under  which  a  proposed  treaty  would 
be  signed;  at  the  very  least  it  would  have  suggested 
forcibly  the  expediency  of  always  consulting  them 
before  opening  negotiations.     It  might  also  have  led 
the  Senate  to  expect  such  consultation   and    thus 
have  made  it  easier  for  Senators  or  groups  of  Senators 
to   demand  it.     A  legislative  body  eagerly  creates 
and  tenaciously  clings  to  precedents  which  increase 
its  power  and  enhance  its  dignity  and  importance. 
At  the   time   Jay's   nomination   was   before   them, 
however,  the  necessities  of  the  situation  and  the 

^  See  above,  p.  35. 


80  THE  SENATE  AND  TREATIES 

political  influence  of  the  Federalist  leaders  were 
powerful  enough  to  keep  the  Senate  from  demanding 
the  instructions  which  were  to  be  issued  to  him. 
The  same  forces  w^ere  now  sufficient  to  lead  the 
Senate  to  waive  for  the  good  of  the  nation  and  of 
the  Federalist  party  what  it  might  well  have  re- 
garded as  its  established  prerogatives.  Thus  the 
precedent  which  was  established  weakened  rather 
than  strengthened  its  position  in  treaty-making. 
The  first  great  treaty  under  the  Constitution  had 
been  negotiated  by  the  executive  alone.  Not  until 
the  signed  agreement  was  laid  before  it  had  the 
Senate  been  formally  consulted  as  to  its  terms. 
A  determined  attempt  to  prevent  ratification  until 
new  negotiations  had  been  attempted  along  lines 
laid  down  by  the  Senate  had  failed.  The  course 
adopted  by  Washington  in  shifting  his  relations 
with  the  Senate  in  this  matter  from  a  basis  of 
theory  to  one  of  expediency  had  been  justified  by 
events  and  accepted  by  the  Senate. 

On  June  24,  the  day  following  the  rejection  of 
Burr's  proposal,  an  attempt  was  made  to  add  to  the 
resolution  of  advice  and  consent,  the  recommenda- 
tion that  the  President  continue  negotiations  for 
the  purpose  of  securing  adequate  compensation  for 
negroes  carried  off  by  the  British  in  contravention 
of  the  treaty  of  peace.  The  motion  to  this  effect 
was  presented  by  Jacob  Read,  Federalist  Senator 
from  South  C'arolina,  and  was  seconded  by  Pierce 
Butler,  his  Republican  colleague.^  It  was  lost  by 
a  vote  of  12  to  15,  Read  himself  and  Humphrey 
Marshall  of  Kentucky  moving  from  the  Federalist 

>  Se7i.  Exec.  Jour.,  I.  185. 


THE    JAY    TREATY  81 

phalanx  to  vote  for  tlie  interests  of  the  slave  owners. 
It  is  interesting  to  note  the  sectional  character  of 
this  division,  every  southern  Senator  except  Clunn 
of  Georgia  voting  for  the  amendment,  while  Burr, 
Langdon  of  New  Hampshire,  and  Robinson  of 
Vermont  cast  the  only  northern  votes  in  favor  of 
the  proposal. 1  The  subsequent  fate  of  this  propo- 
sition may  be  mentioned  here.  On  June  25,  after 
the  Senate  had  advised  the  ratification  of  the  treaty, 
James  Gunn,  the  Federalist  Senator  from  Georgia, 
introduced  a  resolution  advising  further  negotiation 
to  obtain  compensation  for  the  slaveholders  and 
suggesting  that  in  case  this  should  fail  the  President 
attempt  to  secure  an  agreement  to  submit  the  claims 
to  a  joint  commission.  Coupled  with  it  was  a  para- 
graph declaring  the  opinion  of  the  Senate  to  be  that 
the  negotiation  on  this  subject  should  be  distinct 
from  and  subsequent  to  that  recommended  in  their 
resolution  of  the  twenty-fourth  respecting  the  West 
India  trade.  The  Republicans  refused  to  accept  the 
resolution  with  this  declaration,  and  as  Henry  of 
Maryland  was  not  in  the  chamber  when  the  final 
vote  came,  the  Federalists  lacked  one  of  the  twenty 
votes  necessary  to  secure  its  passage.- 

After  this  attempt  to  care  for  the  interests  of  the 
slaveholders  had  failed,  the  minority  made  their 
final  stand.  A  resolution  was  introduced  that  the 
President  be  informed  that  the  Senate  would  not 
consent  to  the  ratification  of  the  treaty  for  seven 
different  reasons  which   were   set  forth  in  detail.^ 

1  Sen.  Exec.  Jour.,  I.  185.  -  Ibid.,  pp.  187-189. 

3  The  following  reasons  were  stated: 

•'1st.    Becau.se  so  much  of  the  treaty  as  was  intended  to  ter- 


82  THE  SENATE  AND  TREATIES 

The  object  of  this  resolution  probably  was  to  write 
into  the  record  a  final  and  formal  statement  of  the 
grounds  upon  which  the  minority  opposed  the 
treaty.     It  was  promptly  voted  down. 

The  Federalists  then  exerted  their  power  and 
forced  their  resolution  of  the  seventeenth  to  a  vote. 
The  question  was  divided  and  that  part  of  the  resolu- 

niinate  the  complaiuts  flowing  from  the  inexecution  of  the  treaty 
of  1783,  contains  stipulations  that  were  not  rightfully  or  justly 
requirable  of  the  United  States,  and  which  are  both  impolitic  and 
injurious  to  their  interests;  and  because  the  treaty  hath  not  secured 
that  satisfaction  from  the  British  government,  for  the  removal  of 
negroes  in  violation  of  the  treaty  of  1783,  to  which  the  citizens  of 
the  United  States  were  justly  entitled. 

"2nd.  Because  the  rights  of  individual  states  are,  by  the  ninth 
article  of  the  treaty,  unconstitutionally  invaded. 

''3d.  Because,  however  impolitic  or  unjust  it  may  generally  be 
to  exercise  the  power  prohibited  by  the  tenth  article,  yet  it  rests 
on  legislative  discretion,  and  ought  not  to  be  prohibited  by  treaty. 

"4th.  Because  so  much  of  the  treaty  as  relates  to  commercial 
arrangements  between  the  parties,  wants  that  reciprocity  upon 
which  alone  such  like  arrangements  ought  to  be  founded,  and  will 
operate  ruinously  to  the  American  commerce  and  navigation. 

"  5th.  Because  the  treaty  prevents  the  United  States  from  the 
•exercise  of  that  control  over  their  commerce  and  navigation,  as 
connected  with  other  nations,  which  might  better  the  condition  of 
their  intercourse  with  friendly  nations. 

"6th.  Because  the  treaty  asserts  a  power  in  the  President  and 
Senate,  to  control,  and  even  annihilate  the  constitutional  right 
of  the  Congress  of  the  United  States  over  their  commercial  inter- 
course with  foreign  nations. 

"7th.  Because,  if  the  construction  of  tliis  treaty  should  not 
produce  an  infraction  of  the  treaties  now  subsisting  between  the 
United  States  and  their  allies,  it  is  calculated  to  excite  sensations 
Avhich  may  not  operate  beneficially  to  the  United  States. 

"Notwithstanding  the  Senate  will  not  consent  to  the  ratification 
of  tliis  treaty,  they  advise  the  President  of  the  United  States  to 
continue  his  endeavors,  by  friendlj'  negotiation  with  his  Britannic 
Majesty,  to  adjust  all  the  real  causes  of  complaint  between  the 
two  nations."     Sen.  Exec.  Jour.,  I.  185-18G. 


THE    JAY    TTJEATY 


83 


tion  advising  and  consenting  to  ratification,  provided 
that  the  twelfth  article  be  amended,  was  carried  by 
the  party  vote  of  20  to  10.  The  remaining  para- 
graph, advising  further  negotiation  on  the  West 
India  trade  was  then  unanimously  agreed  to.^  Thus 
the  result  of  Washington's  final  effort  to  avert  the 
''scourge  of  nations"  was  accepted  by  the  Senate 
with  only  such  modifications  as  were  suggested  by 
the  leaders  of  the  Federalist  party  and  likely  to  be 
agreed  to  by  Great  Britain. 

The  assent  of  the  Senate  to  conditional  ratifica- 
tion at  once  gave  rise  to  the  question  of  the  proper 
procedure  to  be  followed  in  making  the  proposed 
additional  article  a  part  of  the  treaty.  RepubUcan 
Senators  declared  that  the  entire  treaty  would 
have  to  be  resubmitted  to  the  Senate  before  rati- 
fication.- On  June  29  the  President  submitted  a 
copy  of  the  Senate  resolution  to  the  Secretaries  of 
State,  Treasury,  and  War,  and  to  the  Attorney 
General,  together  with  these  two  questions: 

First,  is  or  is  not  that  resolution  intended  to  be  the 
final  act  of  the  Senate;  or  do  they  expect,  that  the  new 
article  which  is  proposed  shall  be  submitted  to  them  be- 
fore the  tn^aty  takes  effect? 

Secondly,  does  or  docs  not  the  constitution  permit  the 
President  to  ratify  the  treaty,  without  submitting  the 
new  article,  after  it  shall  be  agreed  to  by  the  British 
King,  to  the  Senate  for  their  further  advice  and  consent?' 

'  Sett.  Exec.  Jour.,  I.  1S6. 

-  C'randall,  Treaties,  Their  Making  and  Enforcement  (2d  ed.) 
p.  81.  citing  Tazewell  to  Monroe.  .Iiine  27,  ITO.'i,  MS.  Monroe 
Papers,  VIII.  9.51. 

3  Written  abo>it  June  2<),  ITO.j,  Wuslnnyton'x  Writings,  XIII, 
59,  00. 


84  THE  SENATE  AND  TREATIES 

The  Secretaries  and  the  Attorney  General  were 
agreed  in  the  opinion  that  it  was  unnecessary  to 
submit  the  new  article  to  the  Senate.^  Hamilton, 
upon  this  first  consideration  of  the  question  at  least, 
seems  to  have  taken  the  other  position.  Ac- 
customed to  rely  upon  his  assistance  in  weighty 
matters,  Washington  had  requested  his  advice  upon 
the  ratification  of  the  treaty  even  though  he  was  no 
longer  in  official  position ;  ^  and  in  particular  had 
asked  his  opinion  as  to  the  proper  course  to  be 
pursued  on  this  point .^  Washington,  seriously  con- 
sidered Hamilton's  advice  and  as  he  was  leaving 
Philadelphia  for  Mt.  Vernon  on  July  14,  he  re- 
quested his  former  Secretary  of  the  Treasury  to 
lay  his  ideas  before  Randolph,  if,  upon  mature  re- 
flection, he  should  continue  to  disagree  with  the 
position  taken  by  the  latter  and  his  colleagues. 
He  also  informed  Randolph  of  Hamilton's  opinion 
and  asked  him  to  discuss  the  subject  again  with 
the  other  officers  of  the  government.^  There  is  no 
record  that  Hamilton  further  expressed  his  views 
on  this  matter  either  to  Washington  or  to  Randolph. 
Possibly  he  realized  that  a  resubmission  would  have 
jeopardized  the  entire  treaty  and  for  this  reason 
decided  to  hold  his  peace.     That  the  opponents  of 

*  Washington  to  Hamilton,  July  14,  1795,  Ibid.,  p.  07. 

-  Hamilton's  resignation  was  accepted  January  31,  1793. 
McMaster,  History  of  the  People,  II.  212. 

3  Washington  to  Hamilton,  July  3,  1795,  Washingtoti's  Writings 
Xni.  Gl-03;  Washington  to  Hamilton,  July  13,  1795,  Ibid.,  pp. 
63-67. 

*  Washington  to  Hamilton,  July  14,  1795,  Washington's  Writ- 
ings, XIII.  67. 


THE    JAY    TREATY 


85 


the  administration  felt  that  they  had  nothing  to  lose 
and  everything  to  gain  by  resubmission,  explains 
their  position  upon  the  constitutional  point.  Jeffer- 
son, for  example,  in  writing  to  Tazewell,  observed: 

I  am  not  witliout  hope  that  the  operations  of  the  12th 
article  may  render  a  recurrence  to  the  Senate  yet  neces- 
sary, and  so  give  to  the  majority  an  opportunity  of  cor- 
recting the  error  into  which  their  exclusion  of  public 
light  has  led  them.^ 

Whatever  may  have  been  Hamilton's  ultimate 
opinion,  Washington  finally  acted  upon  the  advice 
of  the  heads  of  the  departments,  and  the  course 
then  laid  out  has  been  uniformly  followed  since 
when  the  Senate  has  advised  and  consented  to  the 
ratification  of  treaties  under  certain  conditions, 
usually  in  the  form  of  definite  amendments.  Ran- 
dolph admirably  expressed  the  principle  upon  which 
this  action  is  based. 

The  Secretarv  of  State,  in  his  written  opinion,  on  July 
12  argued  that,  as  the  final  ratification  was  given  by  the 
President,  and  not  by  the  Senate,  the  action  of  the  Senate, 
even  in  case  it  advised  and  consented  unconditionally, 
was  taken  upon  a  treaty  the  completion  of  which  was 
reserved  to  the  President;  that  the  Senate  consequently 
might  give  its  advice  and  consent  without  having  the 
very  treaty  which  was  to  be  ratified  before  it;  that  if 
the  President  should  ratify  without  again  consultmg 
that  body,  he  would  be  responsible  for  the  accuracy  with 
which  its  advice  was  followed;  and  that  if  he  should 
ratify  what  had  not  been  advised,  the  treaty,  for  that 
very  reason,  would  not  be  the  supreme  law  of  the  land, 
and  in  this  lay  the  security  of  the  Senate.- 

1  Jefferson  to  Tazewell,  September  13,  179o,  Writings  of  Thomas 
Jefferson,  IX.  •iO>^. 

2  Crandall,  Trenties,  Their  Making  ami  Enforcement  C2d  ed.),^pp. 
80-81.     Reference  to  MS.  Washington  Papers,  XXII.  14S,  184,  -200. 


86  THE  SENATE  AND  TREATIES 

The  decision  thus  made  was  of  vital  importance. 
Had  it  been  decided  that  resubmission  to  the 
Senate  in  such  circumstances  was  necessary  and 
that  when  resubmitted  a  treaty  was  again  Hable 
to  rejection  or  amendment,  the  power  of  the  Senate 
would  have  been  appreciably  increased  and  our 
system  of  ratification  made  even  more  complicated. 

By  August  14  Washington  finally  had  made  his 
decision  that  he  would  follow  the  advice  of  the 
Senate  and  attempt  to  secure  England's  ratification 
of  the  treaty  with  the  twelfth  article  amended.^ 
This  he  had  no  difficulty  in  doing.  Even  though 
the  business  of  exchange  finally  fell  into  the  hands 
of  W.  A.  Deas,  who  as  American  charge  in  the 
absence  of  Thomas  Pinckney  seems  to  have  made 
himself  unpopular  at  the  British  Foreign  Office. 
Lord  Grenville  raised  no  objection  whatever  to 
the  inclusion  of  an  additional  article  as  required 
by  the  resolution  of  the  Senate.^  Inasmuch  as  later 
British  foreign  ministers  protested  with  more  as- 
perity than  courtesy  against  the  American  custom 
of  ratifying  treaties  conditionally  or  with  amend- 
ments proposed  by  the  Senate,  the  position  taken 
by  Lord  Grenville  upon  this  occasion  is  worthy  of 
exposition.^ 

In  his  report  of  a  conference  with  Grenville  on 
the  morning  of  the  twenty- third,  Deas  informed 
Pinckney  that  upon  stating  that  he 

'  Randolph  to  Adams,  August  14,  1795,  MS.  State  Department, 
U.  S.  Ministers,  Instructions,  III.  24. 

-  Memoirs  of  John  Quincy  Adams,  I.  122. 

'  Much  of  the  correspondence  referred  to  in  this  discussion  is 
to  be  found  in  Trescot,  The  Diplomatic  History  of  the  Admittis- 
iratiotis  of  Washington  and  Adams,  pp.  119-120. 


THE    JAY    TREATY  87 

was  possessed  of  the  President's  Ratification  of  tlie 
Treaty  conformably  to  the  Advice  of  the  Senate  and  of- 
fering to  exchange  the  same  for  an  equivalent  Ratifica- 
tion on  the  part  of  this  Govei-nment,  his  Lordship  ol)served 
unofficially  that  he  had  no  reason  to  think  such  exchange 
would  not  take  place,  but  that  it  would  be  necessary 
to  lay  the  Inisiness  before  the  King  for  his  Determination.' 

Five  (lays  later  Deas  was  able  to  announce  the  ex- 
change of  ratifications.  It  is  evident  that  Great 
Britain  at  this  time  expressed  no  disapproval  what- 
ever at  the  modification  by  the  Senate  of  the  treaty 
as  signed,  for  Deas  wrote  to  Pickering  that 

Lord  Grenville  in  presenting  that  [the  ratification]  on 
the  part  of  their  Government  expressed  the  satisfaction 
it  afforded  the  King  in  giving  his  assent.  You  will  ob- 
serve from  the  copy  of  the  British  Ratification  herein 
enclosed  that  it  corresponds  with  that  of  the  President.'^ 

.  1  William  A.  Deas  to  Secretary  of  State,  October  23,  1795, 
MS.  State  Department,  England,  Vol.  III. 

'  \^■illiam  A.  Deas  to  Secretary  of  State,  October  28,  179.5,  Ibid. 

It  may  be  observed  that  the  long  delay  in  the  promulgation 
of  the  Jay  treaty  proViably  was  due  to  the  fact  that  Deas  forwarded  to 
the  State  Dei)artment  only  a  copy  of  the  British  ratification  instead 
of  the  original.  His  letter  of  October  28,  announcing  the  exchange 
of  ratifications,  is  endorsed  as  having  been  received  at  the  Depart- 
ment on  December  28.  Two  months  more  passed  before  the  treaty 
was  proclaimed,  during  which  time  the  Republicans  roundly  abused 
Washington  for  his  silence  on  the  .subject.  McMaster,  History 
of  the,  People,  II.  263.  A  letter  from  Pickering  to  Deas  dated 
March  9,  1796,  explains  the  delay  as  follows:  "  No  original  ratification 
having  arrived,  as  expected  the  President  at  length  directed  the 
treaty  with  Great  Britain  to  be  promulgated,  on  the  evidence  of  its 
ratification  by  his  Majesty  contained  in  your  letter  of  October  28th. 
But  the  daily  expectation  of  an  original,  induced  the  suspension 
of  this  promulgation  until  the  29th  of  February,  and  the  next  day 
the  treaty  was  laid  before  each  House  of  Congress."  Pickering 
to  Deas,  March  9,  1796.  MS.  State  Department,  United  States 
Ministers,  Vol.  III. 


88  THE  SENATE  AND  TREATIES 

On  February  29,  1796,  the  President  proclaimed 
the  treaty  without  further  consultation  with  the  Sen- 
ate upon  the  form  of  ratification,  and  on  March  1 
laid  it  before  both  Houses  of  Congress.^  The  pro- 
priety and  constitutionality  of  this  course  seenis  to 
have  been  unquestioned  at  the  time.  Certainly 
there  is  no  record  of  any  protest  from  the  Senate 
or  from  individual  Senators. 

In  the  matter  of  propriety,  in  fact,  the  Senate 
had  been  put  in  no  pleasant  position  by  the  action 
of  one  of  its  own  members.  When  Washington 
had  transmitted  the  treaty  and  the  documents  con- 
nected with  it  his  message  had  been  silent  upon  the 
subject  of  secrecy.  Neither  the  treaty  itself  nor 
the  documents  were  submitted  "in  confidence." 
The  question  at  once  arose,  however,  whether  the 
Senate  should  regard  the  matter  as  confidential, 
and  during  the  very  first  session  an  order  was  passed 
laying  the  Senators  under  an  injunction  of  secrecy 
concerning  the  communications  received  from  the 
President.-  It  was  further  directed  that  thirty-one 
copies  of  the  treaty  be  printed,  under  injunction  of 
secrecy,  for  the  use  of  the  Senate.  On  the  following 
day  two  additional  copies  were  authorized.^  On  the 
twelfth,  the  opponents  of  ratification  made  a  deter- 
mined effort  to  secure  the  publication  of  the  treaty. 
But  on  the  thirteenth  the  motion  to  rescind  the  reso- 
lution enjoining  secrecy  was  defeated  by  the  strict 
party  vote  that  had  marked  the  divisions  on  all  of 
the  important  phases  of  the  struggle  for  ratification.'' 

1  Annals  of  Congress,  1795-1790,  pp.  48,  394. 

2  Sen.  Exec.  Jour.,  I.  178.  '  Ibid. 
*  Ibid.,  pp.  178,  179,  181. 


THE   JAY   TREATY  89 

Thus  the  matter  stood  until  after  the  final  action 
of  the  Senate  on  the  treaty. 

On  June  25  the  matter  was  again  brought  up  by 
Burr,  who  moved  that  the  resohition  of  the  eighth 
enjoining  secrecy  upon  the  Senators  be  rescinded, 
but  that  they  nevertheless  be  enjoined  not  to 
authorize  or  allow  any  publication  in  print  of  the 
treaty  or  any  article  thereof.  Ellsworth  endeavored, 
unsuccessfully,  to  substitute  for  this  an  order  that 
until  ratification  the  question  of  publication  should 
be  left  solely  with  the  President.  Burr's  motion 
was  then  adopted  as  presented  but  was  at  once  re- 
considered. On  the  next  day,  however,  after  much 
debate  and  several  divisions  a  resolution  w^as  carried 
removing  the  injunction  of  secrecy  but  forbidding 
the  Senators  to  give  out  any  copy  of  the  treaty  or 
of  any  article  thereof.^ 

The  action  of  the  Senate  in  refusing  to  authorize 
the  publication  of  the  treaty  or  any  article  thereof 
seems  to  have  come  from  a  feeling  among  a  majority 

>  Sen.  Exec.  Jour.,  I.  190,  191,  192.  With  reference  to  this  action 
Madison  wrote  to  Monroe,  December  20,  179.5.  "The  Senate,  after 
a  few  weeks  consultation,  ratified  the  Treaty  as  you  have  seen.  The 
injunction  of  secrecy  was  then  dissolved  by  a  full  House,  and  quickly 
after  restored  sub  modo,  in  a  thin  one.  Mr.  Mason,  disregarding 
the  latter  vote,  sent  the  Treaty  to  the  press,  from  whence  it  flew 
with  an  electric  velocity  to  every  part  of  the  Union."  Wriliyigs  of 
James  Madison,  VI.  2.58.  This  statement  overlooks  the  fact  that 
on  the  twenty-sixth  practically  the  same  motion  that  was  recon- 
sidered on  the  twenty-fifth  was  again  passed,  and  that  it  did  not 
remove  the  injunction  against  allowing  the  printing  of  the  treaty. 
Some  corroboration  for  Madison's  statement  about  the  reconsider- 
ing of  the  original  motion  in  a  thin  house  may  be  found  in  the 
circumstances  that  reconsideration  was  had  upon  motion  of  King, 
supported  by  Cabot  and  that  it  was  ordered  that  all  absent  Senators 
be  notified  of  the  reconsideration. 


90  THE  SENATE  AND  TREATIES 

of  the  members  that  this  was  a  question  which 
should  be  left  to  the  decision  of  the  President.^ 
The  pressure  from  without,  however,  was  too  heavy 
to  be  withstood  even  by  the  compact  body  of  thirty 
men.  As  Oliver  Wolcott  put  it,  the  permission 
given  was  found  to  be  equivalent  to  publication. 
The  contents  of  the  mysterious  document  gradually 
spread  abroad,-  and  after  the  appearance  of  an  in- 
complete sketch  in  the  Aurora,  Senator  Stevens  T. 
Mason  of  Virginia  sent  his  copy  of  the  treaty  to 
the  editor  of  that  newspaper.'*  Thus  the  Senate 
found  itself  unable  to  enforce  secrecy  upon  all  of 

»  On  June  30  Hamilton  wrote  to  Oliver  Wolcott,  "I  find  the 
non-publication  of  the  treaty  is  working  as  I  expected  —  that  is, 
giving  much  scope  to  misrepresentation  and  misapprehension. 
The  Senate,  I  am  informed  by  several  members,  did  not  take  any  step 
towards  publication,  because  they  thought  it  the  affair  of  the  Presi- 
dent to  do  as  he  thought  fit."  Hamilton  to  Wolcott,  June  3.  Works 
of  Alexander  Hamilton,  X.  107. 

-  On  June  12,  Pierce  Butler,  one  of  the  Senators  from  South 
Carolina,  wrote  Madison  that  he  would  send  him  by  each  post  a 
sheet  of  the  treaty  until  he  had  received  the  whole.  Writings  of 
James  Madison,  VI,  234n.  Madison  MSS.  quoted  as  source. 
Wolcott,  with  humor  that  perhaps  is  unintentional  seems  to  have 
expressed  pretty  accurately  the  attitude  of  the  Senate  on  the  ques- 
tion of  publication  in  a  letter  written  June  25  to  his  wife  in  which  he 
said,  "The  Senate  have  substantially  ratified  the  treaty,  though  as 
one  point  is  suspended,  it  may  be  considered  open.  I  understand 
they  have  determined  not  to  coimtenance  a  publication,  though  they 
have  reserved  the  right  of  conversing  generally  about  it.  Perhaps 
this  will  be  foimd  equivalent  to  a  pubUcation."  Oliver  Wolcott  to 
Mrs.  Wolcott,  June  25,  1795.  (iibbs,  Administrations  of  Washington, 
arul  Adams,  I.  199.  Fo\u-  days  later  Wolcott  wrote  to  his  father 
enclosing  a  paper  which  contained  the  substance  of  the  treaty  with 
the  comment,  "the  curiosity  of  the  public  and  the  impossibility 
of  keeping  absolute  secrecy  has  induced  a  compromise,  that  the 
treaty  may  be  commimicated  informally  to  the  pubUc."  Oliver 
Wolcott  to  Oliver  Wolcott  Sr.,  June  29,  1795,  Ibid.,  I.  202. 

3  McMaster,  History  of  the  People,  U.  216. 


THE    JAY    TREATY  01 

its  members.  Nor  ditl  it  ever  take  any  steps  to 
call  to  account  the  one  who  had  ignored  the  in- 
junction laid  upon  all.  The  special  session  was  over 
before  the  act  was  done.  The  publication  seems  to 
have  had  little  political  effect,  and  when  Congress 
convened  the  following  December  no  steps  were 
taken  to  censure  the  erring  Senator  from  Virginia.' 

The  most  significant  of  the  points  at  which  the 
Jay  treaty  bears  upon  the  development  of  the  treatj'- 
making  powers  of  the  Senate  may  be  summarized 
in  two  groups,  the  first  concerning  the  relation  of 
the  Senate  to  the  negotiation  of  the  treaty,  and  the 
second  regarding  their  action  in  consenting  to  its 
ratification. 

In  the  first  group  may  be  considered  Washington's 
policy  in  communicating  to  Congress  information 
concerning  British-American  affairs.  Almost  from 
the  beginning  of  the  government  he  kept  both 
houses  of  Congress  well  informed  upon  the  rela- 
tions between  this  country  and  England.  In  a 
number  of  instances,  however,  the  Senate  was  given 
more  detailed  and  complete  reports  of  the  situation 

^  On  May  4,  1790,  an  article  which  was  explanatory  to  the  third 
article  of  the  treaty  of  1794  was  signed  at  Washington  by  Phineas 
Bond,  His  Majesty's  Charg6  d'Affaires,  and  Timothy  Pickering, 
Secretary  of  State.  The  article  provided  that  nothing  in  any 
treaty  subsequently  entered  into  by  either  nation  with  a  third 
nation  or  any  Indian  tribe  should  derogate  in  any  manner  from 
the  rights  of  passage  across  the  American  Canadian  border  and 
the  right  to  carry  on  trade  across  the  border  as  guaranteed  by 
Article  3.  Great  Britain  had  deemed  these  rights  to  be  threat- 
ened by  Article  8  of  the  Treaty  of  Greenville.  The  additional 
article  was  sent  to  the  Senate  on  the  day  following  its  signature  and 
advice  and  consent  to  its  ratification  was  given  four  days  later. 
Sen.  Exec.  Jmir.,  I.  207. 


92  THE    SENATE    AND    TREATIES 

than  were  vouchsafed  the  House,  which  course  has 
become  customary. 

Probably  the  outstanding  point  in  connection 
with  the  negotiation  of  the  treaty,  however,  is  the 
extent  to  which  a  small  group  of  Federalist  Senators^ 
who  were  also  among  Washington's  most  trusted 
advisers,  dominated  the  entire  proceeding.  These 
men  suggested  the  mission;  they  secured  its  ac- 
ceptance by  the  President,  and  practically  directed 
the  selection  of  the  envoy;  they  secured  his  con- 
firmation by  the  Senate;  they  sent  him  out  fully 
cognizant-  with  their  views  as  to  what  sort  of  a 
treaty  should  be  striven  for  and  under  very  flexible 
instructions  from  the  Department  of  State. 

It  is  also  important  to  remember  that  this  group 
prevailed  upon  the  Senate  to  approve  the  general 
purpose  of  the  mission  by  confirming  the  nomination 
of  the  envoy  without  demanding  to  be  informed 
of  and  to  pass  judgment  upon  the  particular  in- 
structions under  which  the  negotiation  was  to  be 
carried  on. 

Many  points  in  the  procedure  of  the  Senate  after 
the  treaty  had  been  laid  before  them  are  worthy 
of  note.  Again  the  influence  of  the  same  leaders, 
possessing  the  confidence  both  of  the  Senate  and  of 
the  President,  was  sufficient  to  control  the  situation 
and  largely  determined  the  action  of  the  Senate 
throughout  the  session.  It  was  under  their  in- 
fluence that  the  Senate  consented  to  the  ratification 
of  the  treaty,  only  upon  condition  that  the  twelfth 
article  be  amended.  It  was  then  decided  that  such 
conditional  ratification  was  to  be  considered  as 
the  final  act  of  the  Senate;    and  that  it  was  not 


THE    JAY   TREATY  93 

necessary  to  resubmit  the  treaty  to  the  Senate 
after  their  amendments  had  been  accepted  by  the 
executive  and  the  other  signatory  power.  The 
conditional  ratification  of  the  treaty  was  acceded  to 
by  England  without  protest. 

Of  much  importance  was  the  refusal  of  the  Senate 
to  adopt  a  resolution  that  the  President  be  requested 
to  renegotiate  the  treaty.  This  refusal,  taken  in 
conjunction  with  its  earlier  action  in  voting  down  a 
resolution  demanding  Jay's  instructions,  must  have 
confirmed  Washington  in  his  conclusion  that  it  was 
both  constitutional  and  expedient  to  consult  the 
Senate  through  influential  members  during  the 
earlier  processes  of  treaty-making,  and  to  seek  its 
formal  approval  of  treaties  only  at  the  time  of  rati- 
fication, rather  than  prior  to  and  during  the  period 
of  negotiation.  His  experience  with  the  Senate  in 
connection  with  Indian  treaties  had  led  him  to 
adopt  this  policy,  and,  by  not  challenging  it  in 
this  important  instance,  the  Senate  may  be  con- 
sidered to  have  sanctioned  the  practice. 

Finally,  by  failing  to  maintain  secrecy  with 
reference  to  the  treaty,  the  Senate  seemed  to  justify 
the  opinion  of  Washington  that  it  was  not  a  safe 
repository  for  diplomatic  secrets.  This  question 
has  been  a  delicate  point  between  the  Senate  and 
the  President  at  various  times  since  Washington's 
day. 

The  participation  of  the  Senate  in  making  the 
Jay  treaty  illustrates  the  process  by  which  govern- 
mental powers  and  institutions  are  developed.  The 
permanent  procedure  of  the  Senate  for  the  con- 
sideration of  treaties,  its  relations  with  the  Presi- 


94  THE    SENATE    AND    TREATIES 

dent  in  this  matter,  and  the  exemption  of  the 
United  States  from  the  rule  that  a  nation  is  ordi- 
narily bound  to  ratify  treaties  signed  by  its  pleni- 
potentiaries were  largely  determined  by  the  course 
followed  at  this  time.  Yet  not  constitutional 
theory  but  rather  the  exigencies  of  national  and 
international  politics  governed  the  action  of  all 
parties  to  the  transaction.  Thus  constitutional  pre- 
cedents which  in  time  came  to  have  great  weight 
were  by-products  of  the  political  process.  Recog- 
nition of  this  fact  does  not  decrease  the  importance 
of  the  procedure  which  here  was  in  the  making. 
On  the  contrary,  it  gives  to  procedure  a  living 
quality  which  it  never  can  possess  of  itself. 


CHAPTER   V 

The  Creek  Treaty  of  1796 

The  last  important  treaty  which  Washington 
sent  to  the  Senate  was  that  signed  with  the  Creek 
nation  at  Coleraine  June  29,  1796.  Six  years 
previously  a  treaty  concluded  at  New  York  had 
guaranteed  to  the  Creeks  all  lands  within  the 
United  States  to  the  westward  and  southward  of 
the  boundary  therein  set  up  between  them  and  the 
State  of  Georgia.^  But  this  guarantee  was  believed 
by  most  Georgians  to  be  beyond  the  powers  of  the 
central  government  and  an  infringement  upon  the 
rights  of  the  state  as  sovereign  over  the  territory 
in  question.-  On  account  of  this  feeling  in  Georgia, 
and  for  other  reasons,  the  treaty  had  failed  to  settle 
the  Creek  question.  So,  after  four  years  of  disorder 
along  the  frontier,  the  state  legislature  in  December. 
1794,  instructed  the  Georgia  representatives  in 
Congress  to  apply  to  the  federal  government  to 
make  a  treaty  securing  from  the  Creeks  the  cession 
of  those  lands  lying  beyond  the  existing  boundary 
line  and  between  the  Oconee  and  the  Ocnuilgee 
rivers.^     Before    this    request    was    preferred,    the 

I   Am.    State    Papers,    Indian    Affairs,    I.    82,    Art.    o.    Treaty, 
August  7,  1790. 

-  Ibid.,  I.  .560.  .'jiU. 

'  Phillips,  Georgia  and  Slate  Rights,  Ch.  II. 

95 


96  THE    SENATE   AND   TREATIES 

Georgia  legislature  had  passed  an  act  authorizing 
the  Yazoo  land  sale  and  declaring  that  the  state 
possessed  the  right  of  preemption  of  the  Creek 
lands. ^  This  action  on  the  part  of  Georgia  had 
been  called  to  the  attention  of  Congress  by  the 
President,^  and  in  pursuance  of  a  resolution  of  both 
houses  an  inquiry  into  the  subject  had  been  in- 
stituted.^ Therefore,  when  the  request  of  Georgia 
was  laid  before  Washington  near  the  end  of  the 
session  in  the  spring  of  1795,  it  asked  for  action 
which  involved  questions  affecting  the  general  policy 
to  be  pursued  towards  the  Creeks,  the  ultimate 
rights  of  Georgia  over  the  Indian  lands,  and,  indi- 
rectly, the  attitude  of  the  Federal  Government 
toward  the  Yazoo  sale.  The  delicacy  of  the  situa- 
tion and  the  complexity  and  importance  of  the  issues 
involved  led  the  President  to  hold  the  matter  over 
until  the  end  of  the  special  session  of  the  Senate 
which  was  called  to  consider  the  Jay  treaty. 

On  the  day  following  the  final  action  of  the 
Senate  on  this  treaty  Washington  laid  the  Georgia- 
Creek  matter  before  it.  He  stated  that  he  had  de- 
cided to  accede  to  the  request  of  the  state,  but  with 
the  explicit  declaration  that  neither  his  assent  nor 
any  treaty  which  might  be  made  should  be  con- 
sidered as  affecting  any  question  arising  under  the 
act  of  sale  of  the  Georgia  assembly  of  January  7, 
1795,  and  that  any  cession  of  Indian  claims  should 
be  made  in  the  language  of  the  treaty  of  New  York. 

'  Phillips,  Georgia  and  Slate  Rights,  p.  30.  The  act  was  signed 
January  7,  1795. 

2  Kichardson,    Messages,  I.  175. 

'  President's  Message,  June  25,  1795,  -1//;.  State  Papers,  Indian 
Affairs,  I.  560. 


THE  CREEK  TREATY  OF  1796  97 

It  also  was  to  be  required  that  Georgia  pay  one-half 
of  the  expense  incident  to  the  negotiations.  Wash- 
ington further  stated  that  this  seemed  to  be  a  favor- 
able opportunity  to  inquire  into  all  of  the  causes 
of  dissatisfaction  among  the  Creeks,  and  that 

The  commissioners  for  holding  the  proposed  treaty  will, 
therefore,  be  instructed  to  in(|uire  into  the  causes  of  the 
hostilities  to  which  I  have  referred,  and  to  enter  into 
such  reasonable  stipulations  as  will  remove  them,  and 
give  permanent  peace  to  those  parts  of  the  United  States. 

The  nomination  of  three  commissioners  followed/ 
and  the  last  act  of  the  special  session  was  their 
unanimous  confirmation.- 

Six  months  later  the  President  laid  before  the 
Senate  the  signed  treaty.'^  Although  successful  in 
concluding  a  treaty  of  peace  which  proved  to  be  last- 
ing in  its  effect,  the  commissioners  not  only  had  failed 
to  secure  the  desired  cession  of  land  for  Georgia,  but 
they  had  included  in  the  treaty  provisions  which 
aroused  the  determined  opposition  of  that  state. 

Articles  three  and  four  provided  that  the  Presi- 
dent should  have  the  power  to  establish  trading  or 
military  posts  in  the  territory  of  the  Creeks  for  the 
purpose  of  preventing  the  violation  of  any  of  the 
provisions  or  regulations  subsisting  between  the 
parties,  and  that  the  Indians  should  annex  to  each 
such  post  a  tract  of  land  five  miles  square  and  cede 
the  same  to  the  United  States.  It  was  further 
provided  that  when  such  lands  were  no  longer  neces- 
sary for  the  purpose  for  which  they  were  ceded  they 

>  Sen.  Exec.  Jour.,  I.  lSfl-190.  =  Ibid.,  p.  192. 

'  Ibid.,  p.  219;  Am.  Stdle  Papers,  ImUan  Affairs,  1.  .oS(i-G16, 
for  message,  treaty,  and  documents  submitted. 


98  THE  SENATE  AND  TREATIES 

should  revert  to  the  Indians.  At  the  conclusion  of 
the  negotiations  at  Coleraine  the  three  commis- 
sioners whom  the  State  of  Georgia  had  sent  to 
attend  them  prepared  a  protest  against  the  treaty 
and  against  the  manner  in  which  it  had  been  nego- 
tiated. The  fifth  of  the  seven  points  made  was  an 
objection  to  this  cession  of  land  to  the  United  States 
without  the  consent  of  Georgia.  The  act  was  de- 
clared to  be  in  contravention  of  Section  8  of  Article  I 
of  the  Constitution.^ 

The  protest  of  the  Georgia  commissioners  was 
submitted  to  th^  Senate  along  with  a  voluminous 
record  of  the  negotiations.  In  all,  the  documents 
bulked  to  some  forty  thousand  words.  After  five 
days  spent  in  going  through  this  mass  of  material 
the  matter  was  referred  to  a  committee  composed  of 
Read  of  South  Carolina,  Sedgwick  of  Massachusetts, 
and  Ross  of  Pennsylvania.'-  This  committee  recom- 
mended that  the  treaty  be  ratified  with  the  proviso 
that  nothing  in  the  third  and  fourth  articles  should 
be  construed  to  affect  any  claim  of  the  State  of 
Georgia  to  the  right  of  preemption  in  the  land 
therein  set  apart  for  miUtary  or  trading  posts;  "or 
after  the  Indian  rights  to  the  lands  adjoining  thereto 
shall  have  been  legally  extinguished  by  the  State 
of  Georgia,  to  gi\'e  to  the  United  States  without 
the  consent  of  the  said  State,  a  right  to  the  soil,  or 
the  exclusive  legislation  over  the  same."  ^ 

This  report  was  considered  in  five  separate  ex- 
ecutiv^e  sessions.^    Then  an  amendment  was  intro- 

1  Am.  Stale  Pajwis,  ludim,  AJfairx,  1.  Gi:3-<)1-L 

2  .Sen.  Exec.  Jour.,  I.  220-221.  '  Ibid..  ]>.  222. 
*  Ibid.,  pp.  222,  225,  2211. 


THE    CREEK    TREATY    OF    179()  09 

duced  striking  out  of  the  treaty  so  much  of  the 
third  and  fourth  articles  as  provided  for  the  cession 
of  land  to  the  United  States.'  The  Senate,  however, 
was  not  ready  to  admit  the  contentions  of  Georgia 
to  this  extent,  and  the  proposed  amendment  was 
voted  down.-  The  protection  of  whatever  rights 
(Jeorgia  had  to  the  land  in  (luestion  was  made  more 
explicit,  however,  by  amending  the  last  part  of  the 
resolution  reported  by  the  committee  so  that  it  de- 
clared that  nothing  in  the  two  articles  should  be 
construed 

to  give  to  the  United  States,  without  the  consent  of  the 
said  State,  any  right  to  the  soil,  or  the  exclusive  legisla- 
tion over  the  same,  or  any  other  right  than  that  of 
establishing,  maintaining  and  exclusively  governing,  mili- 
tary and  trading  posts  within  the  Indian  territory  men- 
tioned in  the  said  articles  as  long  as  the  frontier  of  Georgia 
may  require  these  establishments. 

The  advice  and  consent  of  the  Senate  to  the  rati- 
fication of  the  treaty  was  then  given  with  this 
proviso  and  condition.^ 

Thus  the  Senate  exercised  its  power  in  behalf  of 
a  state  which  felt  that  its  rights  were  threatened  by 
a  treaty  concluded  by  the  executive.^  Too  much 
significance,  however,  should  not  be  attached  to  its 
action  in  partially  upholding  the  contentions  of 
CJeorgia.  There  is  no  evidence  that  the  executive 
opposed  the  proviso  that  finally  was  included  in  the 
Senate  resolution.     In  fact,  the  original  resolution 

»  Sen.  Exec.  Jour.,  I.  227.    ^  Ibid.,  pp.  229-2::50.    '  Jbid.,  pp.  229. 

*  It  will  be  remembered  that  the  treaty  of  Fort  Hariiiar  with 
the  Six  Nations  was  not  acted  upon  by  the  Senate  because  that  body 
feared  that  it  infringed  the  rights  of  New  York  and  Massachusetts 
to  Indian  lands.     See  pp.  1.5-16  above. 


100  THE    SENATE    AND    TREATIES 

to  protect  the  rights  of  Georgia  was  proposed  by  a 
committee  two  of  whose  three  members  were  ad- 
ministration men.  The  amendment  to  nullii'y  the 
Indian  cessions  completely,  which  was  supported  by 
the  Georgia  senators  and  seven  of  their  Republican 
friends,  was  defeated  22  to  9.  And  that  the  con- 
ditional ratification  finally  advised  was  unsatis- 
factory to  the  state  is  shown  by  the  fact  that  it 
was  opposed  by  both  of  her  senators  and  by  six 
other  Southerners.  Thus,  although  the  protesting 
state  received  some  concessions  from  the  Senate, 
there  is  nothing  to  indicate  that  it  was  given  any- 
thing more  than  the  executive  was  willing  to  grant; 
and  certainly  the  condition  with  which  ratification 
was  consented  to  did  not  materially  alter  the  char- 
acter of  the  cessions  which  were  protested  against.^ 
Upon  this  occasion,  nevertheless,  the  Senate  was 
the  forum  in  which  a  state  was  able  to  appear  and 
protest  against  an  alleged  invasion  of  its  rights  by 
the  federal  government;  and  if  it  did  not  receive 
all  of  the  relief  it  asked  for,  it  at  least  secured  a  very 
thorough  discussion  of  its  case  -  and  a  more  explicit 
statement  of  the  rights  which  the  original  treaty 
had  intended  to  recognize. 

1  The  instructions  under  which  the  Treaty  of  Coleraine  was 
negotiated  are  not  available.  It  is  not  unlikely,  however,  that  in 
providing  for  the  cessions  in  the  form  that  they  did  the  commis- 
sioners were  acting  upon  their  own  responsibility  and  that  the 
executive  was  glad  to  have  this  form  modified  by  the  Senate. 

■  The  Treaty  of  Coleraine  was  considered  by  the  Senate  in 
thirteen  separate  executive  sessions,  and  apparently  some  of  the 
discussions  were  lengthy.  As  the  treaty  was  comparatively  brief, 
and  as  no  other  point  seems  to  have  aroused  i)articular  opi)osition, 
it  is  probable  that  most  of  this  time  was  consumed  in  debating  the 
objections  of  Georgia  to  the  third  and  fourth  paragraphs. 


THE  CREEK  TREATY  OF  1 79()         101 

THE  ADVICE  OF  THE  SENATE  UPON  THE 
EXECUTION  OF  TWO  TREATIES 

In  addition   to   participating  in   the  negotiation 
and   the   ratification    of   treaties,    the    Senate   was 
called  upon  by  Washington  to  assist  in  the  interpre- 
tation of  one  treaty  and  to  advise  upon  the  manner 
in  which  another  should  be  carried  out.     The  first 
instance  occurred  in  1791.     In  January  of  that  year 
the  President  laid  before  the  Senate  a  representation 
of   the   Charge  d'Affaires  of   France   that   acts   of 
Congress  of  1789  and  1790  imposing  an  extraordinary 
tonnage  on  foreign  vessels,  without  excepting  those 
of  France,  were  in  contravention  of  Article  V  of 
the  Treaty  of  Amity  and  Commerce  of  1778.     The 
report  of  the  Secretary  of  State,  which  accompanied 
the  representation,   thoroughly  discussed   the   case 
from  the  viewpoint  of  American  interests,  and  con- 
cluded   by    the    presentation    of    three    alternative 
courses  of  action:    (1)  To  insist  upon  the  American 
construction  of  the  article  in  question,  and  to  ex- 
plain in  friendly  terms  the  difficulties  involved  in 
the  exemption   claimed   by  France.     (2)  To  agree 
with  the  French  interpretation  and  to  modify  the 
law  accordingly.     (3)  To  waive  the  matter  of  right 
and  make  the  amendment  as  an  act  of  friendship. ^ 
The    President    submitted    the    report    and    the 
documents  to  the  consideration  of  the  Senate  that 
he  might  ''be  enabled  to  give  to  it  such  answer  as 
may  best  comport  with  the  justice  and  the  interests 
of  the  United  States.^"     The  message  was  referred 
to    Morris,    King,    Izard,    Strong,    and   Ellsworth.^ 

1  Sen.  Exec.  Jour.,  I.  65  et  seq.  2  jf^^j^  pp  (35_72.  3  /^^ 


102  THE    SENATE    AND    TREATIES 

After  considering  the  report  of  this  committee 
during  several  executive  sessions,  the  Senate  ex- 
pressed the  opinion  that  the  American  interpreta- 
tion of  the  treaty  was  correct,  and  resolved,  "That 
the  Senate  do  advise  that  an  answer  be  given  to  the 
Court  of  France,  defending,  in  the  most  friendly 
manner,  this  construction  in  opposition  to  that 
urged  by  the  said  Court."  ^  This  course  was 
adopted  by  the  executive. 

In  January,  1797,  the  President  sent  to  both 
Houses  of  Congress,  in  confidence,  reports  from  the 
Departments  of  State  and  the  Treasury  which  dis- 
closed the  fact  that  the  appropriation  made  for 
carrying  into  effect  the  treaty  with  Algiers  was  in- 
adequate for  this  purpose.  $376,505.66  was  the 
sum  declared  to  be  necessary  for  complying  with  the 
terms  of  the  treaty.'-  This  sum  included  the  cost 
of  a  frigate  not  provided  for  in  the  agreement,  but 
subsequently  promised  to  the  Dey.  In  the  Senate 
this  message  and  the  accompanying  documents  were 
referred  to  a  committee  composed  of  Marshall, 
Goodhue,  and  Tichenor.^  The  committee  submitted 
a  report,  which  was  adopted,  recommending  that 
the  money  should  be  appropriated,^  and  approving 
the  agreement  to  add  a  frigate  to  the  naval  equip- 
ment promised  the  Dey.  Although  the  message  of 
the  President  was  received,  discussed,  and  acted 
upon  in  executive  session,  the  House  bill  appropriat- 
ing the  money  asked  for  was  referred  to  another 
committee,  and  passed  through  the  regular  legisla- 

*  Sen.  Exec.  Jour.,  I.  77. 

2  Am.  State  Papers,  For.  Rels.,  X.  553-558. 

'  Sen.  E.rec.  Jour.,  I.  220.  *  Ibiil,  p.  225. 


THE  CREEK  TREATY  OF  1706         103 

tive  procedure.'  The  incident  illustrates  how,  even 
at  this  period,  the  Senate  was  developing  a  special, 
or  separate,  procedure  for  matters  relating  to  foreign 
affairs. 

SUMMARY 

A  review  of  Washington's  administrations  reveals 
several  distinct  developments  in  the  interpretation 
and  application  of  the  treaty-making  clause.  There 
can  be  no  doubt  that  from  the  very  beginning  the 
Senate  exercised  to  the  full  the  powers  in  treaty- 
making  and  in  foreign  affairs  granted  to  it  by  the 
Constitution.  The  Senate  of  Washington's  ad- 
ministrations was  a  compact  body  of  experienced 
and  able  statesmen.  Foreign  affairs  and  relations 
with  the  Indian  tribes  were  among  the  most  im- 
portant of  the  subjects  with  which  the  new  govern- 
ment had  to  deal.  Through  the  constant  exercise 
of  its  treaty-making  powers  the  Senate  exerted  a 
powerful  influence  in  both  fields  of  activity.  It  ad- 
vised the  opening  of  negotiations,  passed  upon  the 
instructions  under  which  they  were  to  be  carried  on, 
and  in  some  instances  amended  or  rejected  treaties 
already  made.  Washington  made  treaties  ''by  and 
with  the  advice  and  consent"  of  the  Senate  in  a 
sense  and  to  an  extent  that  no  later  President  ever 
has. 

One  very  important  decision  reached  by  the  logic 
of  events  during  these  eight  years,  however,  was 
that  the  Senate  could  not  really  be  a  "council  of 
advice"   to   the   President   in   treaty-making.     Yet 

»  Annals  of  Congress,  1796-1797,  pp.  15.56,  1559,  1587,  1570- 
1571. 


104  THE    SENATE    AND    TREATIES 

evidently  both  Washington  and  the  Senate  originally 
expected  that  it  would  be  such  a  council.  The 
personal  element  in  their  relations  was  emphasized 
by  the  presence  of  the  Secretary  of  State  or  the 
Secretary  of  War,  or,  in  the  one  instance,  of  the 
President  himself  at  their  deliberations.  Washing- 
ton expressed  it  as  his  opinion  that  personal  con- 
ferences were  indispensably  necessary  in  treaty 
matters,  and  provision  was  made  for  such  confer- 
ences. The  chief  result  of  the  first  conference  was 
that  it  was  the  last.  Messages  on  treaty  matters 
came  to  be  transmitted  to  the  Senate  by  the  Presi- 
dent's private  secretary,  and  communications  be- 
tween the  Senate  and  the  heads  of  departments 
took  on  a  formal  and  impersonal  tone.  Such,  in 
fact,  came  to  be  the  general  character  of  the  rela- 
tions between  the  President  and  his  cabinet,  and  the 
Senate  in  the  performance  of  their  joint  function. 
As  the  Senate  ceased  to  be  consulted  as  a  real 
"council  of  advice"  its  activities  in  that  part  of 
treaty-making  known  as  the  negotiation  became  less 
important.  At  first  in  making  treaties  both  with 
the  Indian  tribes  and  with  .foreign  nations  the 
President  usually  secured  the  advice  and  consent 
of  the  Senate  to  the  details  of  the  proposed  treaty 
before  opening  the  negotiation.  In  the  end  it  be- 
came his  custom  merely  to  inform  the  Senate  of 
the  proposed  negotiation  upon  securing  its  consent 
to  the  nomination  of  the  agent,  and  to  submit  the 
latter's  instructions  only  with  the  completed  treaty. 
The  vast  difference  between  the  detailed  manner  in 
which  the  advice  of  the  Senate  was  taken  prior  to 
the  negotiation  of  the  Creek  treaty  of  1790  and  the 


THE   CREEK   TREATY   OF    1  TOG  10') 

brief  statement  in  which  the  President  made  known 
to  them  his  intention  to  settle  the  differences  be- 
tween those  Indians  and  the  United  States  in  17%, 
is  typical  of  the  change  in  procedure.  The  same 
development  is  illustrated  by  comparing  the  re- 
lations of  the  Senate  and  the  President  in  making 
the  Spanish  treaty  with  the  manner  in  which  the 
Jay  treaty  was  made.  In  the  former  instance  the 
President  laid  before  the  Senate  a  definite,  and,  as 
to  some  subjects,  a  detailed  statement  of  the  treaty 
he  intended  to  secure.  The  Senate  agreed  to  con- 
sent to  the  ratification  of  any  treaty  signed  in  ac- 
cordance with  these  propositions.  In  the  latter 
case  John  Jay  was  nominated  as  envoy  to  England 
to  ''adjust  our  complaints"  against  that  country. 
The  Senate  was  not  informed  of  the  particular 
measures  he  was  to  take  to  attain  this  end,  nor 
was  it  bound  to  accept  the  resulting  treaty.  The 
effect  of  the  change  in  procedure  was  to  leave  the 
President  free  to  negotiate  the  sort  of  treaty  which 
the  necessities  of  the  situation  demanded  and  al- 
lowed, while  the  Senate  retained  a  like  freedom  to 
accept,  to  amend,  or  to  reject  the  result  of  his 
efforts. 

The  principle  of  independence,  however,  if  carried 
too  far,  obviously  would  have  produced  an  un- 
satisfactory, if  not  an  unworkable,  system.  But 
along  with  this  method  of  procedure  there  de- 
veloped another  factor  which  tended  to  modify  its 
separative  effects.  This  factor  was  the  committee. 
During  the  period  under  consideration  the  develop- 
ment of  the  committee  system  with  reference  to 
foreign  affairs  was  spontaneous  and  not  the  result 


106  THE    SENATE    AND    TREATIES 

of  conscious  effort  on  the  part  of  the  Senate.  In 
the  case  of  the  Jay  treaty,  in  which  a  small  group 
of  Senators  secured  a  reasonable  degree  of  unity 
between  the  Senate  and  the  President,  the  essential 
principle  of  the  committee  system  was  applied 
naturally,  but  informally,  perhaps  unknowingly. 
The  need  existed;  it  was  met  in  the  most  natural, 
■  direct,  and  simple  manner.  As  later  developed,  the 
committee  system  became  the  recognized  substi- 
tute for  the  abandoned  practice  of  personal  con- 
sultation between  the  Senate  and  the  President  in 
treaty-making.  During  these  first  eight  years, 
however,  committees  were  utilized  in  treaty  matters 
primarily  to  expedite  and  make  more  effective  the 
work  of  the  Senate  in  this  field,  rather  than  as  a 
means  of  contact  between  the  two  parties  to  the 
treaty-making  power. 


CHAPTER   VI 

Treaties  of  the  Administration  of 
John  Adams 

Two  of  the  treaties  which  came  before  the  Senate 
during  the  John  Adams  administration  may  be  con- 
sidered very  briefly.  The  first  was  the  Treaty  of 
Peace  and  Friendship  with  TripoH,  signed  the  fourth 
of  November,  1796.^  The  second  was  an  article  ex- 
planatory of  the  Jay  treaty,  releasing  the  com- 
missioners under  the  fifth  article  from  particularizing 
the  latitude  and  longitude  of  the  River  St.  Croix.'- 
The  Tripolitan  treaty  was  submitted  at  the  end  of 
May,  1797,  while  the  explanatory  article  was  re- 
ceived just  a  year  later.  The  procedure  upon  the 
two  treaties  was  identical  except  at  one  point. 
Each  was  read  and  on  a  subsequent  day  referred  to 
a  committee  of  three;  in  each  case  the  committee 
reported  favorably  and  the  resolution  of  advice  and 
consent  was  agreed  to  without .  a  dissenting  vote. 
The  single  difference  is  that  the  treaty  with  Tripoli 
was  ordered  to  be  printed  immediately  after  being 
read,  while  no  such  order  was  entered  with  reference 
to  the  explanatory  article.  By  this  time  it  had  be- 
come the  usual  custom  to  order  treaties  to  be  printed 

'  Am.  Stale  Pa/jcr.s-,  For.  Reh.,  II.  18;  Sen.  Exec.  Jour.,  1.  241, 
244. 

2  Ibid.,  pp.  278-9. 

107 


108  THE    SENATE   AND   TREATIES 

in  confidence  for  the  use  of  the  Senate,  although  as 
yet  the  practice  was  not  invariable. 

THE    TREATY    OF    1797    AVITH    TUNIS 

On  February  21,  1798,  the  President  laid  before 
the  Senate  a  treaty  of  "Peace,  Friendship,  Commerce 
and  Navigation"  with  the  Bey  of  Tunis. ^  This 
treaty  had  been  negotiated  for  the  United  States 
by  Joseph  S.  Famin,  a  French  merchant,  acting 
under  instructions  from  Joel  Barlow,  Consul  Gen- 
eral at  Algiers.  It  was  intended  to  secure  American 
shipping  in  the  Mediterranean  from  molestation  by 
Tunisian  corsairs  and  to  regulate  the  commerce  be- 
tween the  two  countries.-  It  was  in  connection 
with  one  of  the  provisions  upon  the  latter  subject 
that  the  Senate  interposed  its  authority  to  protect 
the  United  States  from  the  results  of  a  serious 
diplomatic  error. 

Immediately  after  having  been  read,  the  message 
and  the  treaty  were  referred  to  a  committee  com- 
posed of  Bingham  of  Pennsylvania,  Read  of  South 
Carolina,  and  Sedgwick  of  Massachusetts.^  They 
reported  a  resolution  advising  and  consenting  to 
the  ratification  of  the  treaty  on  condition  that  the 
fourteenth  article  be  suspended  and  recommending 
that  the  President  enter  into  further  negotiations 
with  the  Bey  "on  the  subject  of  the  said  article,  so 

1  Sen.  Exec.  Jour.,  I.  262.  For  discussion  of  the  treaty  see  Lyman, 
Diplomacy  of  the  United  States,  II.  396-402;  Allen,  Our  Xavij  and 
the  Barbary  Corsairs,  pp.  .59-66. 

-  For  original  treaty  and  documents  submitted  therewith  see 
Am.  State  Papers,  For.  Rels.,  II.  123-12.5. 

^  Sen.  Exec.  Jour.,  I.  262. 


THE   ADMINISTRATION    OF   JOHN   ADAMS  109 

as  to  accommodate  the  provisions  thereof,  to  the  ex- 
isting treaties  of  the  United  States  with  other  na- 
tions."    This  resohition  was  adopted. • 

The  article  which  was  thus  suspended  by  the 
Senate  was  intended  to  regulate  the  customs  duties 
between  the  two  countries.     It  read  as  follows: 

The  Citizens  of  the  United  States  of  America,  who  shall 
transport  into  Tunis  the  merchandise  of  their  country, 
in  the  vessels  of  their  nation,  shall  pay  three  per  cent, 
duty.  Such  as  may  be  laden  by  such  citizens  under  a 
foreign  flag  coming  from  the  United  States,  or  elsewhere, 
shall  pay  ten  per  cent.  duty.  Such  as  may  be  laden  by 
foreigners  on  American  vessels  coming  from  any  place 
whatever,  shall  also  pay  ten  per  cent.  duty.  If  any 
Tunisian  merchant  wishes  to  carry  merchandise  of  his 
country,  under  any  flag  whatever,  into  the  United  States 
of  America,  and  on  his  own  account,  he  shall  pay  three 
per  cent,  duty.- 

The  Senate  found  two  objections  to  this  article. 
First,  the  provisions  governing  the  duties  to  be 
paid  by  citizens  of  the  two  states,  respectively, 
upon  goods  carried  into  the  other  violated  the 
principle  that  treaties  should  be  reciprocal  in  their 
terms.  These  provisions,  however,  probably  were 
of  little  practical  importance,  inasmuch  as  the 
amount  of  goods  brought  into  the  United  States 
by  the  merchants  of  Tunis  was,  and  might  be  ex- 
pected to  remain,  small. 

The  second  objection  was  a  more  serious  one. 
It  was  based  upon  a  direct  conflict  between  the  last 
provision  of  the  article  in  question  and  the  most 
favored   nation   clause   in   our   treaties  with   other 

'  Sen.  Exec.  Jour.,  I.  263-264. 

2  Am.  State  Papers,  For.  Rels.,  II.  124. 


110  THE  SENATE  AND  TREATIES 

nations.  Its  probable  effect  upon  the  United  States, 
had  it  been  enforced,  is  clearly  set  forth  in  the  fol- 
lowing paragraph  from  the  instructions  under  which 
the  negotiations  for  its  alteration  were  carried  on: 

The  revenues  of  the  United  States  arise  chiefly  from 
duties  on  goods  imported.  The  duties  generally  exceed 
ten  per  cent.  They  are  imposed  on  our  own  merchants, 
and  increased  on  the  merchants  of  foreign  nations.  Our 
treaties  with  these  nations  state  that  no  higher  duties 
shall  be  paid  by  their  subjects  than  by  those  of  the  most 
favored  nation.  Consequently,  if  this  article  in  the 
Treaty  with  Tunis  should  be  ratified  by  the  American 
Government,  the  duties  on  all  the  goods  imported  into 
the  United  States  by  the  subjects  of  these  foreign  nations 
must  be  reduced  to  three  per  cent.  This  would  neces- 
sarily involve  the  reduction  of  the  duties  on  goods  im- 
ported in  our  own  vessels,  or  our  whole  navigation  would 
sink  beneath  the  unequal  burthen.^ 

In  December,  1799,  the  President  informed  the 
Senate  that  in  accordance  with  their  recommenda- 
tion he  had  entered  into  a  further  negotiation  with 
the  Bey  on  the  subject  of  the  fourteenth  article  of 
the  treaty,  and  laid  the  result  of  the  negotiation 
before  them.-  In  addition  to  the  modification  of 
the  article  which  was  rejected  by  the  Senate,  the 
new  negotiation  had  resulted  in  alterations  to  the 
eleventh  and  twelfth  articles.^ 

1  Instructions  to  Richard  O'Brien,  William  Eaton,  and  James 
Leander  Cathcart,  Am.  State  Papers,  For.  Rels.,  II.  281. 

2  Sen.  Exec.  Jour.,  I.  328. 

3  The  eleventh  article  had  provided  that  upon  entering  the  port  of 
one  of  the  parties  a  war  vessel  of  the  other  should  be  saluted  by  the 
fort  and  should  return  the  salute,  gun  for  gun;  also  that  she  should 
give  to  the  authorities  of  the  port  a  barrel  of  powder  for  each  gun 
fired.     It  was  well  known  that   no  war  vessel  of  Tunis  would  be 


THE    ADMINISTRATION   OF   JOHN    ADAMS  111 

The  Senate  referred  the  matter  to  the  committee 
which  had  recently  been  appointed  to  consider  the 
treaty  with  Prussia.  The  reference  to  this  com- 
mittee is  explained  by  the  fact  that  Bingham,  its 
chairman,  and  one  other  member  had  served  on 
the  committee  upon  the  original  treaty  with  Tunis, 
of  which  Bingham  had  been  chairman.  A  few 
days  later  the  Senate  gave  its  advice  and  consent 
to  the  ratification  of  the  three  articles  in  question.^ 

There  seem  to  be  no  means  of  ascertaining  whether 
the  action  of  the  Senate  in  suspending  the  fourteenth 
article  of  this  treaty  was  spontaneous  or  whether 
the  recommendation  of  the  original  committee 
sprang  from  a  suggestion  from  the  State  Department 
or  the  President.  It  is  obvious,  however,  that  the 
Senate  gave  to  the  government  of  the  United  States 
an  opportunity  to  propose  the  necessary  alteration 
upon  grounds  that  Tunis  could  not  reasonably 
take  exception  to.  The  change  in  itself  was  of  the 
greatest  importance.  Had  the  treaty  been  rati- 
fied as  signed,  the  United  States  undoubtedly  would 

likely  to  enter  an  American  port,  while  the  almost  constant  presence 
of  American  cruisers  in  the  Mediterranean  could  thus  be  made  to 
furnish  the  Bey  with  a  fairly  steady  supply  of  powder  —  particu- 
larly as  the  number  of  guns  to  be  fired  was  unlimited.  In  the  re- 
vised article  it  is  provided  that  the  salute  should  not  be  fired  by  the 
forts  except  at  the  request  of  the  American  consul;  that  the  number 
of  guns  should  be  fired  which  he  might  request;  and,  "if  the  said 
Consul  does  not  want  a  salute,  there  shall  be  no  question  about  it." 
Article  XI,  Treaty  of  Amity,  Commerce  and  Navigation,  Tunis, 
1797.  Treaties,  Conventions,  International  Acts,  Protocols  and 
Agreements  Between  the  United  States  of  America  and  Other  Powers, 
177fr-1909  (Sen.  Doc,  No.  357,  61st  Cong.  2d  Session),  p.  1796. 
1  Sen.  Exec.  Jour.,  I.  328-330. 


112  THE    SENATE    AND    TREATIES 

have  been  compelled  to  secure  its  abrogation  or 
alteration  as  soon  as  the  other  nations  with  which 
we  had  treaty  relations  discovered  the  terms  of  the 
fourteenth  article. 


THE    TREATY    OF    1799   WITH    PRUSSIA 

Senate  action  on  the  treaty  of  1799  with  Prussia 
adds  but  little  to  a  study  of  the  development  of 
the  treaty-making  power.  This  treaty  was  prac- 
tically a  renewal,  with  modifications,  of  the  Prussian 
treaty  of  1785,  and  in  itself  seems  to  have  been  ac- 
ceptable to  the  Senate.  The  nomination  of  the 
negotiator,  John  Quincy  Adams,  as  minister  pleni- 
potentiary to  Prussia,  was  opposed  by  more  than  a 
third  of  the  Senate  but  this  opposition  seems  to 
have  been  directed  primarily  at  the  estabhshment 
of  a  permanent  minister  at  the  Court  of  Prussia. 
Adams  was  confirmed  in  May,  1797,^  and  the  treaty 
which  he  negotiated  was  submitted  to  the  Senate  in 
December,  1799.  It  was  ordered  to  be  printed, 
and  three  days  later  was  referred  to  a  committee 
composed  of  Bingham  of  Pennsylvania,  Dexter  of 
Massachusetts,  Watson  of  New  York,  Read  of 
South  Carolina,  and  Goodhue  of  Massachusetts. 
Late  in  January  this  committee  reported  a  resolu- 
tion of  advice  and  consent  to  ratification.  Before 
adopting  the  report,  the  Senate,  after  extended  de- 
bate, passed  a  resolution  asking  for  the  instructions 
given  to  Adams  and  for  the  correspondence  respect- 
ing the  negotiation.  The  papers  were  submitted 
on    February    17,    and   on   the   day   following,    the 

'  Sen.  Exec.  Jour.,  I.  240-242. 


THE    ADMINISTRATION    OF   JOHN    ADAMS  113 

Senate  voted  to  aihise  and  consent  to  ratification, 
26  to  ().' 

Although  in  the  case  of  the  Prussian  treaty  the 
disapprobation  of  a  large  minority  of  Senators  to 
the  nomination  of  a  minister  did  not  extend  to  the 
treaty  which  that  minister  was  to  negotiate,  it  is 
evident  that  the  influence  which  this  means  of  ex- 
pressing disapproval  of  a  treaty  might  exert  upon 
the  executive  was  well  understood  at  the  time. 
That  it  was  realized  is  clearly  shown  by  the  action  of 
.  certain  Senators  with  reference  to  the  nomination 
of  John  Quincy  Adams  in  1798  as  commissioner  to 
secure  a  treaty  of  amity  and  commerce  with  Sweden. 
The  nomination  was  sent  in  on  March  12.  Two  days 
later  it  was  confirmed,  20  to  8.^  On  the  following 
day  Jefferson  wrote  to  his  friend  Madison  as  follows: 

The  President  has  nominated  John  Quincy  Adams 
C'ommissioiUT  Plenipotentiary  to  renew  the  treaty  with 
Sweden.  Tazewell  made  a  great  stand  against  it,  on  the 
general  ground  that  we  should  let  our  treaties  drop,  and 
remain  without  any.  He  could  only  get  eight  votes 
against  twenty.  A  trial  will  be  made  today  in  another 
form,  which  he  thinks  will  give  ten  or  twelve  against 
sixteen  or  seventeen,  declaring  the  renewal  inexpedient. 
In  this  case,  notwithstanding  the  nomination  has  b(>en 
confirmed,  it  is  supposed  the  Pi-esident  would  perhaps 
not  act  under  it,  on  the  probability  that  more  than  a 
third  would  be  against  ratification.  I  believe,  however, 
that  he  would  act,  and  that  a  third  could  not  be  got  to 
oppose  the  ratification .^ 

'  Sen.  Exec.  Jour.,  I.  326,  327,  337-340;  .Iw.  Stale  Papers, 
For.  Rels.,  II.  244-268;  Lyman,  Diplomacy  of  the  United  States,  I. 
1. 50- 1.53,  discusses  the  policy  involved  in  renewing;  the  treaty. 

'  Sen.  Exec.  Jour.,  I.  266. 

3  Jefferson  to  Madison,  March  1.5,  1798.  Writings  of  Thomas 
Jefferson,  X.  8. 


114  THE    SENATE    AND   TREATIES 

The  journals  of  the  Senate  disclose  no  such  at- 
tempt on  the  part  of  Tazewell;  possibly  he  had  be- 
come convinced  of  the  futility  of  his  opposition. 
But  in  any  event  the  incident  shows  clearly  that  at 
the  time  it  was  recognized  that  a  strong  minority 
could,  if  it  desired,  adopt  this  means  of  discouraging 
the  undertaking  of  any  negotiation  of  which  it 
disapproved. 

SENATE   AMENDMENTS   TO   THE   TREATY   OF    1800 
WITH    FRANCE 

The  action  of  the  Senate  in  connection  with  the 
treaty  with  France  of  September  30,  1800,  is  of 
importance  for  two  reasons.  First,  the  manner  in 
which  the  Senate  amended  the  convention  is  a 
striking  example  of  the  extent  to  which  that  body 
can  influence  the  treaty  stipulations  and  affect  the 
foreign  policy  of  the  United  States.  Second,  it  was 
during  the  consideration  of  this  convention  that  the 
Senate  adopted  its  first  set  of  rules  formally  setting 
forth  the  procedure  to  be  followed  when  a  treaty 
should  be  laid  before  it  for  ratification. 
•  The  political  and  commercial  relations  between 
the  United  States  and  France  had  been  defined  by 
the  treaties  of  amity  and  commerce,  and  of  alliance 
of  1778,  and  by  the  consular  convention  which  had 
been  ratified  in  1789.  Changing  conditions,  how- 
ever, made  the  stipulations  of  these  treaties  dif- 
ficult to  fulfill,  particularly  for  the  United  States. 
Between  1790  and  1798,  the  two  republics  passed 
from  disagreement  and  mutual  recrimination  to 
de  facto,  if  not  de  jure  war.    Congress,  in  July,  1798, 


THE   ADMINISTRATION    OF   JOHN   ADAMS  115 

by  law  declared  the  treaties  of  1778  and  the  consular 
convention  to  be  abrooated.'  In  February,  1799, 
in  response  to  advances  made  by  the  French  govern- 
ment, the  President  nominated  Oliver  Ellsworth, 
Chief  Justice  of  the  United  States,  Patrick  Henry, 
ex-Governor  of  Virginia  and  William  Vans  Murray, 
:\Iinister  Resident  at  the  Hague,  "to  be  Envoys 
Extraordinary  and  Ministers  Plenipotentiary  to  the 
French  Republic,  with  full  powers  to  discuss  and 
settle,  by  treaty,  all  controversies  between  the 
United  States  and  France."  -  In  December,  1799, 
William  R.  Davie,  Governor  of  North  Carohna,  was 
substituted  for  Henry.^ 

Secretary  Pickering's  instructions  to  these  en- 
voys directed  that  at  the  opening  of  the  negotiation 
they  should,^ 

inform  the  French  ministers,  that  the  United  States  ex- 
pect from  France,  as  an  indispensal)le  condition  of  the 
treaty,  a  stipulation  to  make  to  the  citizens  of  the  United 
States  full  compensation  for  all  losses  and  damages  which 
they  shall  have  sustained  by  reason  of  irregular  or  illegal 
captures  or  condemnations  of  their  vessels  and  other 
property,  under  color  or  authority  of  commissions  from 
the  French  republic  or  its  agents.     And  all  captures  and 

»  United  States  Statutes  at  Large,  I,  .578  (Acts  of  2d  Sess.  of  5th 
Cong.,  Ch.  XLVII). 

=  Sen.  Exec.  Jour.,  I.  317.  '  Ibid.,  pp.  326-327. 

*  These  instructions,  the  convention,  and  the  other  papers  sub- 
mitted to  the  iSenate  are  printed  in  Am.  State  Papers,  For.  Rels.,  I. 
29.V.34.5.  In  Moore,  International  Law  Digest,  V.  Sec.  821,  is  to 
be  found  one  of  the  best  brief  accounts  of  our  treaty  relations  with 
France,  and  perhaps  the  clearest  statement  of  the  action  of  the  Senate 
with  reference  to  this  treaty.  See  also  Davis,  Xote^  to  Foreign 
Treaties,  pp.  130(^-1307;  Lyman,  Diplomacy  of  the  United  States,  I. 
viii;  McMaster,  History  of  the  People,  II.  527-529;  Foster,  Century 
of  American  Diplomacy,  Ch.  V. 


116  THE    SENATE    AND    TREATIES 

condemnations  are  deemed  irregular  or  illegal,  when  con- 
trary to  the  law  of  nations  generally  received  and  ac- 
knowledged in  Europe,  and  to  the  stipulations  of  the 
treaty  of  amity  and  commerce,  of  the  6th  of  February, 
1778,  fairly  and  ingenuously  interpreted,  while  that 
treaty  remained   in   force. ^ 

And  at  the  conclusion  of  the  instructions  it  is  stated 
that  the  seven  points  are  "to  be  considered  as 
ultimated."     Of  these  the  first  is, 

That  an  article  be  inserted  for  establishing  a  board, 
with  suitable  powers,  to  hear  and  determine  the  claims 
of  our  citizens,  for  the  causes  herein  before  expressed,  and 
binding  France  to  pay  or  secure  payment  of  the  sums 
which  shall  be  awarded. 

The  second  point  is. 

That  the  treaties  and  consular  convention,  declared  to 
be  no  longer  obligatory  by  act  of  Congress,  be  not  in 
whole  or  in  part  revived  by  the  new  treaty;  but  that  all 
the  engagements  to  which  the  United  States  are  to  be- 
come parties,  be  specified  in  the  new  treaty. 

The  seventh  stipulation  is  that  with  the  exception 
of  certain  specified  provisions,  the  duration  of  the 
proposed  treaty  be  limited  to  not  more  than  twelve 
years.^ 

When,  during  the  following  sunnner  the  American 
envoys  met  the  citizen  ministers  appointed  by  the 
First  Consul  to  treat  with  them,  it  was  found  that 
France  was  determined  to  agree  to  neither  of  the 
two  chief  objects  which  they  had  been  instructed 
to  secure.  Joseph  Bonaparte  and  his  colleagues  in- 
sisted that  the  ancient  treaties  were  still  in  force, 

1  Am.  Slate  Papers.  For.  Rels.,  II.  302.  -  Ibid.,  p.  30(3. 


THE    ADMIMSTRATIOX    OF    JOHN'    ADAMS  117 

and  denied  that  France  was  liable  for  any  of  the 
indenniities  demanded  for  injuries  to  American 
shipping.  An  appeal  to  Napoleon,  then  in  Italy, 
brought  fresh  instructions  to  his  negotiators.  In 
their  own  words,  his  proposition  was  ''reduced  to 
this  simple  alternative:  Either  the  ancient  treaties, 
carrying  with  them  the  privileges  resulting  from 
anteriority,  together  with  stipulations  for  reciprocal 
indemnity;  Or  a  new  treaty,  promising  equality, 
unattended  with  indemnities."  ^ 

Napoleon,  in  effect,  had  given  the  Americans  their 
choice  of  the  two  objects  which  they  had  been  in- 
structed to  secure;  they  could  not  have  both. 
Nor  could  he  be  moved  from  this  position.  A 
month  later  the  American  ministers  became  con- 
vinced of  this  fact.  Not  having  authority  either  to 
give  up  the  claims  for  indemnity  or  to  admit  the 
present  validity  of  the  treaties  which  their  govern- 
ment had  declared  to  be  no  longer  binding  upon 
the  United  States  or  its  citizens,  they  determined 
to  conclude  a  temporary  arrangement  upon  both 
subjects.  It  was  proposed  that  permanent  settle- 
ment be  ''postponed  until  it  can  be  resumed  with 
fewer  embarrassments."-  The  result  of  this  de- 
cision was  Article  2  of  the  treaty  as  signed  September 
30,  1800.     This  article  was  as  follows: 

The  Ministers  Plenipotentiary  of  the  two  parties  not 
being  able  to  agree,  at  present,  respecting  the  treaty  of 
alliance  of  6th  Fel)ruary,  1778,  the  treaty  of  amity- and 
commerce  of  the  same  date  and  the  convention  of  14th 
of  November,  1788,  nor  upon  the  indemnities  mutually 
due  or  claimed;    the  parties  will  negotiate  further  upon 

1  Am.  State  Papers,  For.  Rels.,  11.  332.  '  Ibid.,  p.  339. 


118  THE    SENATE    AND    TREATIES 

these  subjects  at  a  convenient  time,  and  until  they  may 
have  agreed  upon  these  points,  the  said  treaties  and  con- 
vention shall  have  no  operation,  and  the  relations  between 
the  two  countries  shall  be  regulated  as  follows:^ 

No  limit  was  set  to  the  duration  of  the  conven- 
tion. Moore  states  that  with  this  exception,  and 
that  of  compensation  for  condemnations  and  cap- 
tures it  substantially  conformed  to  Pickering's  ul- 
timata.- The  fact  remained,  however,  that  the  tw^o 
primary  objects  of  the  negotiation,  the  two  questions 
which  seemed  of  the  utmost  importance  to  almost 
every  American  of  the  day,  were  left  unsettled. 
The  executive  had  secured  neither  indemnity  nor 
an  abrogation  of  the  treaties.  What  would  the 
Senate  do? 

The  Senate  received  the  convention  on  December 
16,  1800.^  With  it  President  Adams  submitted  the 
lengthy  journal  of  the  envoys,  and  a  few  days  later, 
by  request,  the  instructions  under  which  the  nego- 
tiators had  acted.  From  the  first  the  unpopularity 
of  the  treaty  extended  to  the  members  of  both 
parties.  Three  days  after  it  was  received  Jefferson 
wrote  to  Madison  that  it  would  meet  with  opposition 
from  both  sides  of  the  House;  and  he  stigmatized 
it  as  the  result  of  a  ''bungling  negotiation."^  A 
few  days  later  Hamilton  wrote  from  New"  York  to 
Gouverneur  Morris  stating  that  several  friends  had 
informed  him  that  there  was  "likely  to  be  much 
hesitation  in  the  Senate  about  ratifying  the  Con- 

•    1  Am.  State  Papers,  For.  Rels.,  II.,  295-296. 

-  Moore,  International  Law  Digest,  V.  611. 

'  Sen.  Exec.  Jour.,  I.  SfiO. 

•*  Jeffer!5on  to  Madison,  December  19,  lS()(i.  Writings  of  Thomas 
Jefferson,  X.  185. 


THE    ADMINISTRATION    OF   JOHN   ADAMS  119 

vention."  ^  On  the  fifth  of  January,  Pickering  in  a 
letter  to  Riifus  King,  stated,  "It  is  reprobated  by 
both  parties,  and  if  ratified  it  will  be  with  excep- 
tions." - 

Almost  exactly  a  month  after  it  had  been  given 
^nto  their  hands  the  Senate  referred  the  several 
votes  which  had  been  taken  on  the  treat}'  to  a 
committee  composed  of  Morris,  Nicholas,  and  Day- 
ton with  instructions  to  reduce  them  into  the  form 
of  a  ratification.'^  This  proposed  ratification  showed 
that  two-thirds  of  the  Senators  had  voted  for  rati- 
fication with  four  provisos,  as  follows:  1.  That  the 
second  article  be  expunged.  2.  That  the  third  article 
be  expunged.^     3.  That  an  article  be  inserted  ex- 

'  Hamilton  to  G.  Morris.  The  Works  of  Alexander  Hamilton 
(Lodge  ed.),  X.  399.  Hamilton  thought  that  the  convention  should 
be  ratified,  "as  the  least  of  two  evils." 

2  Pickering  to  King,  January  5,  1801,  Life  and  Correspondence 
of  Rufus  King,  HI.  366.  On  January  2,  Senator  McHenrj',  writing 
to  his  friend  Rufus  King,  then  our  minister  in  London,  said:  "The 
convention  lately  entered  into  with  France  is  before  the  Senate. 
Is  it  liked?  No.  As  to  its  fate;  some  think  it  will  be  rejected; 
others  that  it  will  be  accepted  with  modifications  and  exceptions; 
no  one  that  it  will  be  ratified  as  it  is.  McHenry  to  King,  Life  and 
Correspondence  of  Rufus  King,  IIL  363. 

Perhaps  the  strongest  argum^it  in  favor  of  ratification  was 
that  the  treaty  at  least  would  result  in  peace.  This  is  graphically 
expressed  by  Pinckney,  who  wrote  to  Rufus  King,  December  27, 
1800,  "The  treaty  with  the  French  Republic  is  before  the  Senate. 
...  If  it  be  ratified  our  little  navy  will  be  hauled  up.  Pickering 
to  King,  Life  and  Correspondence  of  Rufus  King,  III.  353. 

^  Sen.  Exec.  Jour.,  I.  370.' 

••  This  article  provided  that  public  vessels  which  had  been  taken 
on  either  side,  or  which  might  be  taken  before  the  exchange  of 
ratifications,  should  be  restored.  Am.  Slate  Papers,  For.  Rels., 
II.  296.  Although  reciprocal  in  terms  it  militated  against  the 
United  States  and  added  to  the  unpopularity  of  the  treaty.  Sena- 
tors and  people  were  reluctant  to  return  these  "trophies  of  war." 


120  THE    SENATE    AND    TREATIES 

pressing  the  understanding  that  nothing  in  the 
convention  should  be  so  construed  to  operate 
contrary  to  any  former  and  existing  treaties  of  either 
party.  4.  That  by  an  additional  article  it  be  stipu- 
lated that  the  duration  of  the  convention  should 
be  eight  years  from  the  time  of  the  exchange  of 
ratifications.  But  when  these  questions  were  sever- 
ally put  to  the  Senate  the  fourth  was  the  only  one 
which  received  the  constitutional  majority;  and 
the  report,  amended  accordingly,  failed,  16  to  14.^ 
This  was  understood  to  mean  the  rejection  of  the 
treaty,  and  on  the  following  Monday  a  resolution 
was  introduced  to  make  the  action  a  formal  one.'- 

A  large  majority  of  the  senators,  however,  con- 
sidered the  treaty,  with  some  amendments,  to  be 
better  than  the  existing  conditions  and  those  which 
might  follow  its  rejection.''  Hamilton  and  other  in- 
fluential Federalists,  including  the  President,  urged 
its  acceptance,  probably  on  both  party  and  national 

1  Sen.  Exec.  Jour.,  I.  370,  373-4.  -  Ibid.,  p.  374. 

3  The  following  excerpts  from  the  diary  of  Gouveneiir  Morris 
throw  an  interesting  light  on  the  action  of  the  Senate  at  this  point: 
"I  go  through  the  treaty  in  the  House  today,"  Morris  says,  January 
15th  "and  agree  to  the  amendments  of  the  committee;  some 
sharpness  of  debate.  Report  the  form  of  a  ratification;  consider- 
ation postponed."  On  the  23d  the  Senate  rejected  the  convention 
with  France,  "by  the  intemperate  passion  of  its  friends."  By 
the  26th  there  was  a  general  desire  in  the  House  "  to  recede  from 
the  vote  as  it  stands  on  the  convention.  As  I  all  along  expected 
it  will  be  reconsidered."  Dianj  and  Letters  of  Gouverneur  Moj-ns 
II.  399.  A  reconsideration,  in  fact,  seems  to  have  been  generally 
expected.  February  1,  Pickering  in  relating  to  Rufus  King  the 
details  of  the  rejection  concluded,  "It  is  suggested,  however,  as 
a  thing  to  be  expected  from  the  Democrats,  that  a  reconsideration 
may  be  proposed  in  order  to  ratify  with  contlitions  rather  than  lose 
the  treaty."     Life  and  Correspondence  of  Ritfn.^  King,  HI.  392. 


THE    ADMINISTRATION    OF   JOHN    ADAMS  121 

grounds.'  The  result  was  that  the  advice  and  con- 
sent of  the  Senate  was  given  to  ratification  with 
the  provisos  that  the  second  article  be  expunged 
and  that  the  convention  should  be  limited  in  its 
operation  to  eight  years  from  the  time  of  the  ex- 
change of  ratifications. 

At  this  point  a  comparison  should  be  made  be- 
tween the  action  of  the  Senate  on  the  signed  treaty, 
and  that  taken  by  the  original  negotiators  upon 
the  alternatives  offered  to  them  by  Napoleon.  A 
careful  consideration  of  the  second  article  con- 
vinced the  Senate  that  it  recognized  the  existence 
of  the  treaties  which  Congress  had  declared  abro- 
gated. The  agreement  was  that  at  a  future  time 
the  two  governments  should  negotiate  upon  the 
abrogation  of  these  treaties  and  the  payment  of 
indemnities;  and  that  until  then  the  ''said  treaties 
and  conventions  shall  have  no  operation,  and  the 
relations  between  the  two  countries  shall  be  regu- 
lated," in  accordance  with  the  remaining  articles 
of  the  convention.-    The  American  envoys,  devoid 

1  Hamilton  to  G.  Morris,  Works  of  Alexander  Hamilton,  X.  398- 
400,  December  24,  1800;  also  see  Schouler,  Hisiory  of  the  United 
States,  I.  477-479. 

2  On  January  16,  Morris  wrote  to  Hamilton,  "As  to  the  in- 
duction from  the  words  of  the  second  article,  that  the  old  treaties 
[subsisted]  though  their  operation  was  suspended,  I  think  it  un- 
deniable that,  taken  in  consideration  with  other  things,  would  have 
involved  us  in  serious  difficulty.  .  .  .  When,  therefore,  acknowl- 
edging their  existence  by  s\ispending  their  effects  generally,  we 
particularly  stipulate,  and  literally  renew  a  part;  niight  not  the 
French  demand  for  the  part  so  renewed  a  priority?  .  .  .  Those 
articles  (the  second  and  the  third)  being  left  out,  the  convention 
must  be  considered  merely  as  a  treaty  of  peace.  The  preexistence 
of  war  is  admitted,  and  from  the  moment  of  that  admission  there 
is  an  end  to  treaties  and  to  claims  of  restitution  and  indemnity. 


122  THE    SENATE    AND    TREATIES 

of  authority  to  accept  either  one  of  the  two  alterna- 
tives offered  by  the  French,  had  postponed  the  de- 
cision of  both  in  a  manner  that  seemed  to  have 
strengthened  the  French  position  with  reference  to 
the  more  important  of  the  two  questions  —  the 
status  of  the  treaties. 

The  authority  of  the  Senate,  however,  was  plen- 
ary. By  expunging  the  second  article,  in  effect 
they  accepted  Napoleon's  second  proposition, 
namely,  "the  abrogation  of  ancient  treaties;  the 
formation  of  a  new  treaty,  .  .  .  and  an  entire 
silence  on  the  subject  of  indemnities." 

This  amendment  of  the  treaty  put  the  next  move 
up  to  the  executive  department.  Three  days  be- 
fore the  end  of  the  session  Adams  sent  in  a  message 
in  which  he  said: 

I  have  considered  the  advice  and  consent  of  the  Senate, 
to  the  ratification  of  the  convention  with  France,  under 
certain  conditions.  Although  it  would  have  been  more 
conformable  to  my  own  judgment  and  inclination,  to 
have  agreed  to  that  instrument  unconditionally,  yet,  as 
in  this  point,  I  found  I  had  the  misfortune  to  disagree 
from  so  high  a  constitutional  authority  as  the  Senate, 
I  judged  it  more  consistent  with  the  honour  and  interest 
of  the  United  States  to  ratify  it  under  the  conditions 
prescribed,  than  not  at  all. 

He  further  stated  that  the  matter  of  the  exchange 
of  ratifications  was  to  be  left  to  his  successor.^ 

Nothing,  therefore,  can  make  the  matter  more  clear  than  to  be 
perfectly  silent."  Morris  to  Hamilton,  January  16,  1801,  Diary 
and  Letters  of  Goureritcur  Morris,  II.  399-400.  This  letter  was 
written  on  the  day  following  the  first  vote  of  the  Senate  to  expunge 
the  second  article. 

'  Sen.  Exec.  Jour.,  I.  3SS.  P>ench  ministers  to  the  American 
envoys,  August  11,  1800.     Am.  State  Papers,  For.  Rels.,  II.  332. 


THE   ADMINISTRATION    OF   JOHN   ADAMS  123 

This  exchange  was  affected  by  Jefferson,  l^iit  in 
consenting  to  the  adoption  of  the  amendments 
suggested  by  the  American  Senate,  Napoleon  stipu- 
lated that  by  the  expunction  of  the  second  article, 
"the  two  states  renounce  the  respective  pretensions 
which  are  the  object  of  the  said  article."  ^  Thus 
the  First  Consul  stated  explicitly  what  had  been 
implied  by  the  action  of  the  Senate.  And  that  this 
was  the  understanding  of  the  Senate  and  of  the 
President  is  made  evident  by  subsequent  events. 
On  December  11,  1801,  Jefferson  sent  in  the  fol- 
lowing message: 

Early  in  the  last  month,  I  received  the  ratification, 
by  the  First  Consul  of  France,  of  the  convention  between 
the  United  States  and  that  nation.  His  ratification  not 
being  pure  and  simple,  in  the  ordinary  form,  I  have 
thought  it  my  duty,  in  order  to  avoid  all  misconception, 
to  ask  a  second  advice  and  consent  of  the  Senate,  before 
I  give  it  the  last  sanction,  by  proclaiming  it  to  be  a  law 
of  the  land.- 

1  Am.  State  Papers,  For.  Rels.,  II.  344. 

2  Sen.  Exec.  Jour.,  I.  397;  Jefferson's  opinion  that  the  stipulation 
made  by  Napoleon  merely  expressed  what  had  been  intended  by 
the  Senate  when  it  rejected  Article  3  is  officially  set  forth  in  the 
following  letter  from  Madison  to  Livingston:  "As  the  form  of 
ratification  by  the  French  Government  contained  a  clause  de- 
claratory of  the  effect  given  to  the  meaning  of  the  treaty  by  the 
supression  of  the  second  article,  it  was  thought  by  the  President 
most  safe,  as  a  precedent,  to  ask  anew  the  sanction  of  the  Senate 
to  the  instrument  with  that  ingredient.  No  decision  has  yet  been 
taken  by  that  body;  and  from  "the  novelty  of  the  case,  the  number  of 
Absent  members,  and  the  delays  incident  to  questions  of  form,  it  is 
possible  that  it  may  be  some  little  time  yet  before  the  subject  is 
brought  to  a  conclusion.  ...  I  am  authorized  to  say  that  the 
President  does  not  regard  the  declaratory  clause  as  more  than  a 
legitimate  inference  from  the  rejection  by  the  Senate  of  the  second 
article,  and  that  he  is  deposed  to  go  on  with  the  measures  due  under 


124  THE    SENATE   AND    TREATIES 

After  careful  consideration  by  a  committee  com- 
posed of  Logan,  Jackson,  and  Tracy,  and  in  debate 
upon  the  floor  in  executive  session,  the  Senate  passed 
the  following  resolution: 

Resolved,  that  the  convention,  as  ratified  by  the  first 
Consul  of  France,  and  declared  to  be  considered  by  the 
Senate,  two-thirds  concurring  thereto,  to  be  fully  rati- 
fied, be  returned  to  the  President  of  the  United  States, 
for  the  usual  promulgation. ^ 

This,  it  is  to  be  noted,  is  not  a  second  resolution 
of  advice  and  consent,  but  a  statement  that  in  the 
opinion  of  the  Senate  the  ratification  of  Napoleon, 
with  its  stipulation,  did  not  call  for  new  action  by 
that  body.  Had  the  definite  statement  of  Napoleon 
as  to  the  effect  of  the  expimction  of  the  second  article 
not  been  in  accord  with  the  former  intentions  of  the 
Senate  it  is  hardly  likely  that  they  would  have  failed 
to  exercise  their  authority  either  to  accept  or  to  re- 
ject it,  as  an  explanation  of  the  treaty. 

If  the  process  of  making  this  French  Convention 
of  1800  be  considered  to  extend  from  the  nomina- 
tion of  the  American  envoys  by  the  President  to 
the  final  exchange  of  ratifications,  the  transaction 
illustrates  the  extent  to  which  the  Senate  may  par- 
ticipate in  the  actual  negotiation  of  a  treaty.  The 
President  initiated,  the  negotiation  and  issued  the 
instructions  under  which  it  was  carried  on.  The 
agents  of  the  executive,  acting  under  those  in- 
structions, signed  a  convention  which  settled  neither 

the   compact  to  the  Frcndi    Republic."      Madison,  Secretary  of 
State,  to  Livingston,  U.  S.  Minister  to  P'rance,  December  IS,  1801, 
Aw.  State  Papers,  For.  lids.,  VI.  155. 
•  .Sen.  Kxec.  Jour.,  I.  397-399. 


THE   ADMINISTRATION    OF   JOHN    ADAMS  125 

of  the  two  cardinal  points  at  issue  between  the  two 
nations.  The  instrument  as  signed,  however,  was 
only  the  draft  of  a  treaty.  As  such  it  was  referred 
to  the  ratifying  authority  of  each  state  for  the 
action  which  alone  could  give  it  legal  validity.  A 
part  of  that  authority  in  the  United  States,  the 
Senate,  dechned  to  accept  the  proposed  treaty  as 
it  stood. ^  After  familiarizing  themselves  with  the 
details  of  the  negotiations,  in  effect  the  Senate  went 
back  to  the  point  at  which  the  French  ministers 
had  offered  their  alternative  propositions,  the  ancient 
treaties  with  full  indemnity,  or  a  new  treaty  with 
no  indemnity.  Then,  by  striking  out  the  second 
article,  they  did  what  the  envoys  could  not  do  — 
they  accepted  the  latter  proposition.  Also  they 
Umited  the  duration  of  the  agreement  to  eight 
years. 

The  executive  acceded  to  these  propositions  and 
laid  them  before  the  government  of  France.  Na- 
poleon, of  course,  was  as  free  to  accept  them,  to  re- 
ject them,  or  to  accept  them  conditionally  as  though 
they  had  been  made  during  the  course  of  the  earUer 
negotiation.  He  saw  fit  to  accede  to  them,  with  an 
explicit  statement  of  what  was  implied  by  the  ex- 
cision of  the  second  article.  This  acceptance  on 
his  part  was  recognized  by  the  Senate  as  completing 
the  ratification  of  the  instrument.-     If,  on  the  other 

'  In  this  case  there  can  b(T  no  question  of  the  complete  right  of 
the  United  States  to  refuse  to  ratify  what  its  agents  had  agreed  to, 
for  the  reason  that  those  agents  had  agreed  to  a  convention  which 
was  not  in  accord  with  their  instructions. 

2  That  the  Senate  understood  that  in  advising  and  consenting 
to  a  conditional  ratification  they  were  running  the  risk  of  losing  the 
convention  is  made  evident  by  the  correspondence  of  leading  Senators 


126  THE    SENATE    AND    TREATIES 

hand,  further  conditions  had  been  postulated  by 
the  First  Consul  these  in  turn  might  have  come  be- 
fore the  Senate  for  consideration. 


RULES  FOR  PROCEDURE  UPON  TREATIES 

It  has  been  noted  that  from  the  moment  of  the 
submission  of  the  French  Convention  of  1800, 
senators  were  aware  that  the  struggle  over  its 
adoption  would  be  a  severe  one.  Perhaps  this  was 
the  reason  that  during  its  consideration  the  first 
set  of  standing  rules  governing  in  detail  procedure 
upon  treaties  was  adopted.  Along  with  the  con- 
vention the  President  had  submitted  the  journals 
of  the  American  ministers.  These  were  read 
through  in  three  days,  and  Adams  was  then  re- 
quested to  lay  before  the  Senate  the  instructions  of 
the  envoys.^  In  complying  with  this  request  he 
asked  that  the  instructions  be  considered  in  strict 
confidence  and  that  they  be  returned  to  him  as 
soon  as  the  Senate  should  have  made  all  the  use  of 
them  which  they  might  judge  necessary.  The  fol- 
lowing resolution  was  then  adopted: 

Resolrer],  That  all  confidential  communications  made  b}' 
the  President  of  the  United  States  to  the  Senate,  shall  be, 
by  the  members  thereof,  kept  inviolably  secret;  and  that 
all  treaties  which  may  hereafter  be  laid  before  the  Senate, 

on  both  sides.  It  tliercfore  is  to  be  assumed  that  the  Senate  pre- 
ferred no  treaty  at  all  to  that  presented  to  them.  See  Hamilton 
to  Morris,  January  10,  1801,  Works  of  Alexander  Hamilton,  X.  410, 
Pickering  to  King,  January  5,  ISOl,  Life  and  Correspondence  of 
Rufus  King,  III.  30(5;  G.  Morris  to  Robert  Livingston,  February  20, 
1801,  Diary  and  Letters  of  Gourerneur  Morris,  II.  404. 
1  Sen.  Exec.  Jour.,  I.  359-360. 


THE    ADMINISTRATION    OF   JOHN   ADAMS  127 

shall  also  be  kept  secret,  until  the  Senate  shall  by  their 
resolution,  take  off  the  injunction  of  secrecj'.' 

Thus  the  Senate  established  a  standing  rule  pro- 
viding for  the  secret  consideration  of  all  treaties 
and  all  confidential  communications  from  the  Presi- 
dent in  relation  to  treaties  or  foreign  affairs. 

The  next  step  in  the  formulation  of  procedure 
was  taken  early  in  January.  After  it  had  discussed 
the  treaty  for  several  weeks,  and  before  balloting 
thereon,  the  Senate  laid  down  the  following  general 
rule : 

Resolved,  (as  a  standing  rule,)  That  whenever  a  treaty 
shall  be  laid  before  the  Senate  for  ratification,  it  shall  be 
read  a  first  time,  for  information  only;  when  no  motion 
to  reject,  ratify,  or  modify,  the  whole,  or  any  part,  shall 
be  received. 

That  its  second  reading  shall  be  for  consideration,  antl 
on  a  subsequent  day,  when  it  shall  be  taken  up,  as  in  a 
committee  of  the  whole,  and  ever\'  one  shall  be  free  to 
move  a  question  on  any  particular  article,  in  this  form  — 
"Will  the  Senate  advise  and  consent  to  the  ratification 
of  this  article?"  or  to  propose  amendments  thereto, 
either  by  inserting  or  by  leaving  out  words;  in  which 
last  case  the  question  shall  be,  "Shall  the  words  stand 
part  of  the  article?"  And  in  every  of  the  said  cases,  the 
concurrence  of  two-thirds  of  the  Senators  present  shall  be 
requisite  to  decide  affirmatively.  And  when  through  the 
whole,  the  proceedings  shall  be  stated  to  the  House,  and 
questions  be  again  severally  put  thereon  for  confirmation, 
or  new  ones  proposed,  requiring  in  like  manner,  a  con- 
currence of  two-thirds  for  whatever  is  retained  or  inserted. 

That  the  votes  so  confirmed  shall,  by  the  House,  or 
a  committee  thereof,  be  reduced  into  the  form  of  a  rati- 
fication, with  or  without  modifications,  as  may  have  been 
decided,   and   shall   be    proposed   on   a   sul)sequent    day, 

1  Sen.  Exec.  Jour.,  I.  361. 


128  THE    SENATE    AND    TREATIES 

when  everyone  shall  be  free  again  to  move  amendments, 
either  by  inserting  or  leaving  out  words;  in  which  last 
case,  the  question  shall  be,  "Shall  the  words  stand  part 
of  the  resolution?"  And  in  both  cases  the  concurrence 
of  two-thirds  shall  be  requisite  to  carry  the  affirmative; 
as  well  as  on  the  final  question  to  advise  and  consent  to 
the  ratification,  in  the  form  agreed  to.^ 

The  provisions  of  this  rule  may  be  briefly 
summarized.  Three  readings  on  three  different 
days  are  provided  for.  The  first  is  for  infor- 
mation only  and  at  this  time  no  motion  to  act 
upon  the  treaty  or  any  part  of  it  is  in  order.  Nothing 
is  said  as  to  other  motions,  such  as  to  refer  to  a 
committee,  to  request  further  information  from  the 
executive,  and  so  on.  The  second  reading  is  for 
consideration,  debate,  and  balloting  in  the  com- 
mittee of  the  whole.  All  questions  to  ratify,  amend, 
or  reject  any  part  of  the  treaty  are  to  be  decided 
by  a  two  thirds  vote.  The  same  majority  is  made 
necessary  for  the  acceptance  by  the  House  of  each 
part  of  the  report  of  the  committee.  It  is  then 
provided  that  the  votes  so  confirmed  shall  be  re- 
duced into  a  form  of  ratification.  This  resolution 
shall  in  turn  be  submitted  to  debate,  and  shall  be 
liable  to  amendment  by  two  thirds  vote.  The 
final  question  to  advise  and  consent  to  the  rati- 
fication shall  be  on  the  form  agreed  to  and  a  two 
thirds  vote  shall  be  necessary  to  carry  the  affirmative. 

It  has  been  noted  that  after  the  French  con- 
vention had  been  rejected,  the  general  sentiment 
of  the  Senate  was  in  favor  of  a  reconsideration.  On 
February  3,  accordingly,  a  rule  was  adopted  which 
provided, 

'  Sen.  Exec.  Jour.,  I.  36.5. 


THE    ADMINISTRATION    OF   JOHN    ADAMS  129 

That  when  any  question  may  have  hccn  decided  by 
the  Senate  in  which  two-thirds  of  the  nienilx'is  j)resent 
are  necessary  to  cai'iy  tlie  affirmative,  any  member  who 
voted  on  that  side  which  prevailed  in  the  question,  may 
be  at  liberty  to  move  for  a  reconsideration ;  and  a  motion 
for  reconsideration  shall  be  decided  by  a  majority  of 
votes.' 

'  Sen.  Exit.  Jour.,  I.  376. 

Section  Lll  of  Jefferson's  Manual  treats  rather  of  the  nature  of  the 
treaty-makinp;  power,  and  the  rehitive  powers  of  the  President  and 
the  Senate  therein  than  of  the  proce(Uire  of  the  Senate  upon  treaties 
laid  before  it.  He  refers  to  the  usage  in  accordance  with  which 
the  President  was  accustomed  to  communicate  to  the  Senate  the 
correspondence  of  the  negotiators  along  with  the  treaty,  and  also 
states  that  the  mode  of  voting  on  questions  of  ratification  was  by 
nominal  call.  Senate  Manual,  Containing  (he  Statuiing  Rules  and 
Orders  of  the  United  States  Senate  (edition  1918),  pp.  306-308. 

Under  the  present  rules,  the  procedure  of  the  Senate  on  treaties 
is  regulated  by  Rules  XXXVI  and  XXXVII.  Section  three  of  the 
former  enjoins  secrecy  upon  senators  in  almost  the  same  words  as 
when  adopted  in  1801.  The  rule  for  proceedings  on  treaties  has 
been  altered  in  a  number  of  details.  The  most  important  change 
is  that  which  provides  that  a  concurrence  of  two  thirds  of  the  Sena- 
tors present  shall  be  required  to  carry  only  the  question  of  advice 
and  consent  to  ratification,  or  to  postpone  indefinitely,  other  ques- 
tions being  carried  by  a  simple  majority.     Ibi<l.,  pp.  40-44. 


CHAPTER   VII 

The  Senate  and  the  Treaties  of 
Thomas  Jefferson 

the  convention  of  1802  with  spain 

The  proceedings  of  the  Senate  upon  the  claims 
convention  of  1802  with  Spain  gave  rise  to  several 
interesting  developments.  The  treaty  had  been 
negotiated  by  Charles  Pinckney,  Minister  of  the 
United  States  in  Madrid,  under  instructions  to 
secure  reparation  from  Spain  for  spoliations  com- 
mitted upon  American  commerce,  principally  during 
the  naval  war  between  the  United  States  and  France. 
Hundreds  of  American  vessels  had  been  captured 
by  French  privateers  sailing  from  Spanish  ports, 
and  wrongfully  condemned,  either  by  Spanish 
tribunals,  or  by  French  consuls  within  Spanish 
jurisdiction.^  Spain  admitted  responsibility  for  the 
acts  of  Spanish  subjects,  and  the  convention  pro- 
vided that  claims  arising  out  of  spoliations  by 
them  should  be  adjudicated  b}'^  a  mixed  commission 

>  Am.  Slate  Papers,  For.  Rels.,  II.  476.  Extract  of  a  letter 
from  the  Secretary  of  State  to  Charles  Pinckney.  The  correspond- 
ence and  other  documents  connected  with  this  convention  will  he 
found,  Ibid.,  pp.  440-458,  475-483,  59()-608,  613-695.  See  also 
Davis,  "Notes  Upon  Foreign  Treaties  of  the  United  States,"  p.  1384; 
RIcMaster,  History  of  the  People,  III.  34-36;  Chadwick,  The  Rela- 
tions of  the  United  States  and  Spain,  Diplomacy,  p.  70,  rt  srq.;  Moore, 
International  Law  Digest,  Vol.  V.,  Sec.  821. 

130 


THE   TREATIES   OF   THOMAS   JEFFERSON  131 

sitting  in  Madrid;  but  all  rights  arising  under 
claims  originating  from  the  excesses  of  foreign 
cruisers,  agents,  consuls,  or  tribunals  in  the  terri- 
tories of  either  nation  were  to  be  reserved  for  future 
negotiation. 

The  convention  was  submitted  to  the  Senate  in 
January,  1803,^  and  was  not  finally  passed  upon 
until  virtually  a  year  thereafter.  Soon  after  it  was 
received,  and  again  in  March,  the  Senate  took 
definitive  action  upon  the  treaty,  but  in  each  case 
reconsidered  its  decision.-  Late  in  the  following 
November,  after  the  most  pressing  of  the  matters 
connected  with  the  purchase  of  Louisiana  had  been 
disposed  of,  it  resumed  the  consideration  of  the 
Spanish  convention.  Bradley,  Jackson,  and  Bald- 
win were  appointed  a  committee  to  inquire  whether 
further  proceedings  by  the  Senate  were  necessary, 
and  the  convention  was  ordered  to  be  printed.* 
This  committee  probably  consulted  with  the  Presi- 
dent or  with  the  Secretary  of  State,  for  on  Decem- 
ber 21  Jefferson  sent  in  a  message  explaining  the 
existing  situation  with  reference  to  the  treaty. 
The  President  stated  that  Pinckney  had  been  in- 
structed to  press  for  an  additional  article  compre- 
hending French  seizures  and  condemnations  of 
American  vessels  in  the  ports  of  Spain.  He  also 
submitted  correspondence  which  showed  that  this 
demand  was  being  strongly  resisted  by  the  Spanish 
government,  and  suggested  that  it  might  be  ad- 
visable to  take  what  indemnities  already  had  been 
conceded  and  negotiate  on  the  other  claims  when 

»  .Sen.  Exec.  Jour.,  I.  4:io.  -  Ibid.,  43(5-7,  i41-S. 

3  Ibid.,  p.  459. 


132  THE    SENATE    AND    TREATIES 

the  question  of  the  boundaries  of  Louisiana  came 
up  for  discussion.^  This  was  also  the  opinion  of 
the  Senate,  and  on  January  9  the  convention  was 
ratified  as  it  stood,  after  the  FederaHst  senators 
had  vainly  attempted  to  attach  a  condition  that  it 
should  be  understood  to  embrace  all  claims  arising 
out  of  the  action  of  Spanish  subjects  or  American 
citizens,  whether  official  or  unofficial  persons. - 

In  reviewing  the  action  of  the  Senate  as  outlined 
-above,  attention  should  be  directed  to  the  reasons 
for  its  hesitation  to  act,  to  the  results  of  the  delay 
which  this  caused  in  the  exchange  of  ratifications, 
and  to  two  interesting  phases  of  its  procedure  upon 
the  convention.  With  reference  to  the  first  point, 
there  can  be  no  doubt  as  to  the  nature  of  the  objec- 
tions to  the  treaty.  It  was  felt  that  no  settlement 
should  be  made  which  did  not  bind  Spain  to  make 
reparation  for  the  loss  of  American  ships  carried 
into  Spanish  ports  bj^  French  privateers  or  national 
vessels,  and  there  condemned  by  French  consuls.-^ 

1  Sen.  Exec.  Jour.,  I.  461;  Am.  State  Papers,  For.  Rels,  II.  596- 
606. 

2  Sen.  Exec.  Jour.,  I.  462. 

'  Immediately  after  the  adjournment  of  Congress  in  March, 
1803,  Madison  instructed  Pinckney  to  press  for  the  inchision  of 
these  claims,  saying,  "More  than  a  majority,  but  less  than  two- 
thirds,  which  constitution  requires,  would  have  acquiesced  in  the 
instrument  in  its  present  form;  trusting  to  the  success  of  further 
negotiations  for  supplying  its  defects,  particularly  the  omission 
of  the  claims  founded  on  French  irregularities.  But  it  is  understood 
that  it  would  have  been  a  mere  acquiescence,  no  doubt  being  enter- 
tained that  Spain  is  bound  to  satisfy  the  omitted  as  well  as  the 
included  claims.  In  explaining,  therefore,  the  course  taken  by  the 
Senate,  which  mingles  respect  for  the  Spanish  government  with  a 
cautious  regard  for  our  own  rights,  you  will  avail  yourself  of  the 
opportunity  of  pressing  the  reasonableness  and  sound   policy   of 


THE    TREATIES    OF   THOMAS   JEFFERSON  133 

The  feeling  on  this  point  was  so  strong  that  the 
Senate  seemed  determined  to  consent  to  no  treaty 
that  did  not  provide  for  the  settlement  of  both 
classes  of  claims. 

The  result  of  the  year's  delay  in  the  ratification 
of  this  treaty  by  the  United  States  was  that  no 
American  claims  were  ever  adjusted  under  it. 
During  the  interval  occurred  the  cession  of  Louisi- 
ana, which  increased  the  tension  between  this 
country  and  Spain;  and  after  the  passage  of  the 
Mobile  Act,  setting  up  a  United  States  customs 
district  in  West  Florida,  Spain  refused  to  ratify 
the  treaty  except  under  conditions  to  which  the 
United  States  could  not  assent. ^  Ultimately,  in 
1818,  Spain  did  ratify  it  unchanged,  but  it  was 
annulled  by  Article  X  of  the  Treaty  of  1819,  before 
any  action  had  been  taken  under  it.' 

In  the  matter  of  procedure  two  points  of  interest 
arise.  The  first  is  in  connection  with  the  opinion 
given  by  five  eminent  lawyers  of  Philadelphia  and 
New  York  that  Spain  was  under  no  obligation  to 
make  reparation  for  American  vessels  captured  by 
French  subjects  and  condemned  in  Spanish  ports 
by  French  consuls.  The  question  had  been  pre- 
sented hypothetically  by  Spanish  agents  to  Jared 

remodolling  the  convention  in  such  a  manner  as  to  do  full  justice." 
Am.  State  Papers,  For.  Rels.,  II.  596.  In  announcing  the  ratification 
of  the  convention  to  Robert  R.  Livingston,  Minister  to  France, 
Madison  wrote,  "The  objection  to  it  was,  that  it  did  not  provide 
in  sufficient  extent,  for  repairing  the  injuries  done  to  our  commerce, 
particularly  in  omitting  the  case  of  captures  and  condemnations  by 
French  cruisers  and  consuls,  within  Spanish  responsibility.  Ibid., 
p.  614. 

1  Cevallos  to  Pinckney,  July  2,  1S04.     Ibid.,  p.  619. 

*  Treaties  and  Conventions,  II.  1655. 


134  THE    SENATE    AND    TREATIES 

Ingersoll,  William  Rawle,  J.  B.  McKean,  P.  S. 
Duponceau,  and  Edward  Livingston  with  a  sub- 
stitution of  the  letters  A,  B,  and  C  for  the  names 
of  Spain,  France,  and  the  United  States.  These 
gentlemen  had  agreed  that  Spain  was  not  required 
by  international  law  to  pay  the  indemnities  referred 
to.  This  opinion  rested  principally  on  the  grounds, 
first,  that  Spain  had  been  unable  to  prevent  the 
spoliations,  second  that  the  claims  in  question  had 
been  released  by  the  treaty  k.1  1800  with  France.^ 
The  signed  opinion  of  these  men  was  forwarded 
to  the  Spanish  government,  which  used  it  to 
refute  the  arguments  by  which  Pinckney  sought 
to  obtain  an  additional  article  covering  these 
claims. - 

The  correspondence  between  Pinckney  and  Ceval- 
los  on  this  subject  was  submitted  to  the  Senate 
with  the  message  of  December  21,  1804,  probably 
in  response  to  inquiries  by  Senators  Bradley,  Jack- 
son, and  Baldwin,  who,  it  will  be  remembered  had 
been  appointed  to  consider  the  expediency  of  taking 
further  action  on  the  treaty.  On  the  day  following 
the  receipt  of  the  message  and  documents,  this 
committee  was  discharged.  Bradley  immediately 
introduced  a  resolution  that  a  select  committee  be 
appointed  to  consider  and  report  "whether  and,  if 
any,  what,  further  proceedings  ought  to  be  had  by 
the  Senate,  in  relation  to  the  message  on  the  dis- 
closures made  by  the  same."  ^  This  resolution  was 
agreed  to  immediately  after  the  Senate  had  advised 
the  ratification  of  the  treaty,  and  the  three  men 

1  Am.  State  Papers,  For.  Rels.,  II.  605. 

2  Ibid.,  p.  604  et  seq.  »  Seri.  Exec.  Jour.,  I.  461. 


THE   TREATIES   OF   THOMAS   JEFFERSON  135 

who  had  composed  the  earher  committee  were  ap- 
pointed to  this  one.' 

Towards  the  end  of  the  session  this  committee 
brought  in  a  report  calhng  the  attention  of  the 
Senate  to  the  opinions  expressed  by  the  five  lawyers. 
They  stated  their  belief  that  the  correspondence 
which  these  gentlemen  had  carried  on  with  the 
agents  of  the  Spanish  government  with  an  intent 
to  influence  the  measures  and  conduct  of  tlie  gov- 
ernment of  Spain,  and  to  defeat  the  measures  of 
the  government  of  the  United  States,  was  in  viola- 
tion of  the  act  of  January  30,  1799.2  The  report 
conckided  by  recommending  that  the  President  be 
requested  to  lay  before  the  Attorney  General  all 
documents  relating  to  the  matter  and  that  if,  in 
the  opinion  of  the  latter  officer,  the  evidence  was 
sufficient  to  warrant  it  the  President  be  requested 
to  instruct  the  proper  officer  to  commence  a  prose- 
cution under  the  act  of  1799.^ 

Although  the  Senate  never  acted  upon  this  report, 
the  incident  is  an  example  of  its  tendency  to  take  a 
high  view  of  its  prerogatives  under  the  treaty-making 
power,  and  of  its  alertness  to  resent  any  action  which 
might  be  in  derogation  of  them.  The  Senate  has 
always  guarded  well  its  constitutional  powers,  and 
more  than  once  this  attitude  has  been  an  important 
factor  in  its  decisions  concerning  foreign  affairs. 

'  Sen.  Exec.  Jour.,  I.  463. 

2  A  discussion  of  the  origin  of  this  act,  known  as  the  Logan  Act, 
and  of  its  subsequent  history  is  to  be  found  in  Foster,  A  Century  of 
American  Diplomacy,  pp.  226-231;  see  also  McMaster,  Hi.'^tory 
of  the  People,  III.  284. 

^  Sen.  Exec.  Jour.,  I.  46{)-470. 


136         THE  SENATE  AND  TREATIES 

The  second  point  of  interest  in  the  procedure  upon 
this  convention  is  to  be  found  in  the  use  of  the  com- 
mittee in  its  consideration.  During  the  session  of 
1803  in  which  definite  action  was  twice  taken,  only 
to  be  reconsidered,  the  Senate  dealt  with  the  matter 
directly.  No  committee  was  appointed.  Before 
the  subject  w^as  resumed  in  the  following  session, 
a  committee  of  three  was  chosen,  simply  to  ascer- 
tain the  existing  situation  between  the  executive 
and  the  Spanish  government  with  reference  to  the 
treaty.  The  functions  of  this  committee  ended 
with  the  communication  by  the  President  of  this 
information.  Acting  directly  the  Senate  then  pro- 
ceeded to  pass  the  resolution  of  advice  and  consent, 
and,  afterwards,  appointed  another  committee  to 
investigate  the  disclosures  of  interference  by  Ameri- 
can lawyers.  This  course  affords  a  typical  example 
of  the  status  of  the  committee  in  treaty  affairs  during 
this  period,  when  no  fixed  rules  regulated  its  use  or 
function  in  the  procedure  of  the  Senate  upon  foreign 
relations. 

THE    SENATE    AND    THE    LOUISIANA    TREATY 

In  midsummer,  1803,  President  Jefferson  issued 
a  proclamation  convening  Congress  in  extraordinary 
session  on  the  seventeenth  of  the  following  October 
to  consider  certain  "great  and  weight}^  matters."* 
These  matters  concerned  the  treaties  by  which,  on 
the  thirtieth  of  the  preceding  April,  France  had 
ceded  to  the  United  States  the  vast  territorj^  of 
Louisiana.     Congress  was  to  be  called  upon  to  meet 

1  Richardson,  Messages,  I.  357. 


THE    TREATIES    OF   THOMAS   JEFFERSON  137 

the  stipulated  conditions  and  to  provide  for  taking 
over  and  governing  the  empire  which  the  executive 
had  obtained.' 

Following  the  usage  which  had  become  established 
by  that  time,  the  Senate  on  January  12,  1803,  had 
approved  the  general  proposition  of  a  treaty  with 
France  on  the  question  of  our  rights  on  the  Mis- 
sissippi, by  confirming  the  nomination  of  ministers 
to  carry  on  the  negotiation.  The  sort  of  treaty 
which  the  Senate  had  provisionally  sanctioned, 
however,  was  far  different  from  that  which  subse- 
quently was  signed.  Livingston  and  Monroe  had 
been  nominated  "to  enter  into  a  treaty  or  conven- 
tion with  the  First  Consul  of  France  for  the  purpose 
of  enlarging  and  more  effectually  securing  our  rights 
and  interests  in  the  River  Mississippi  and  in  the 
Territories  eastward  thereof."  -  And  their  con- 
firmation had  been  expressed  in  similar  terms.^ 
The  treaty  which  was  subsequently  signed,  however, 
was  far  different  from  that  which  the  Senate  had 
thus  sanctioned.  Consequently,  so  far  as  their 
previous  action  was  concerned,  they  were  now  free 
to  judge  the  question  of  ratification  strictly  upon 
its  merits. 

1  Probably  the  most  satisfying  study  of  the  diploiuatic,  con- 
stitutional, and  political  aspects  of  the  Louisiana  Purchase  is  to  be 
found  in  Adams,  History  of  the  United  States,  II.  ii-vi.  Reference 
also  has  been  made  to  McMaster,  History  of  the  People,  II.  xiii. 
III.  xiv;  Hosmcr,  History  df  the  Louisiana  Purchase,  Ch.  IX;  Ogg. 
The  Opening  of  the  Mississippi,  Chs.  XI,  XII.  Channing,  The 
Jeffersonian  Systetn,  Ch.  V.  Moore,  International  Law  Digest, 
Vol.  v.,  Sec.  821,  gives  an  excellent  discussion  of  the  diplomatic 
phase  of  the  purchase,  but  does  not  treat  the  matter  in  its  con- 
stitutional aspects. 

*  Richardson,  Messages,  I.  351.  '    Sen.  Exec.  Jour..  I.  430. 


138  THE    SENATE   AND   TREATIES 

After  summoning  Congress  to  meet  and  take 
such  action  as  the  situation  demanded,  Jefferson 
spent  the  remaining  summer  months  in  trying  to 
work  out  the  course  to  be  recommended  to  them 
when  they  should  come  together.  In  this  problem 
the  time  element  was  all-important.  It  was,  in- 
deed, the  determining  factor  in  the  action  not  only 
of  the  President,  but  also  of  the  Senate,  and  of  the 
House  of  Representatives  in  the  conclusion  of  the 
great  purchase.  All  concerned  would  have  given 
much  to  have  weighed,  considered,  debated  the 
issues  involved,  and  finally  to  have  secured  the 
western  empire  in  a  manner  and  under  conditions 
which  squared  with  the  political  principles  which  the 
great  majority  of  them  had  enunciated  for  j^ears. 
But  they  feared  that  if  the  bargain  were  not  sealed 
and  the  consideration  passed  at  once  the  other 
party  might  withdraw,  or  perhaps  might  not  be 
able  to  deliver  what  had  been  promised;  and  in 
the  crisis  all  three  either  altered  or  ignored  their 
principles,  and  closed  the  transaction  with  a  speed 
which  would  seem  to  disprove  the  familiar  state- 
ment that  under  our  form  of  government  prompt 
and  positive  action  in  treaty-making  can  never  be 
secured.  In  fact,  the  Senate  ratified  the  treaty  as 
it  stood  and  Congress  passed  the  measures  neces- 
sary to  give  it  effect  in  a  shorter  time  than  had 
been  required  for  the  President  to  make  up  his 
mind  as  to  what  action  he  should  recommend  to 
them.  !'**"^ 

In  Jefferson's  correspondence  upon  the  proper 
course  to  be  pursued  in  the  dilemma  in  which  he 
found  himself  little  seems  to  have  been  said  about 


THE   TREATIES   OF   THOMAS   JEFFERSON  130 

the  possibility  of  the  rejection  of  the  treaty  by  the 
Senate.  That  rejection  was  not  impossible,  how- 
ever, was  suggested  to  the  President  by  his  friend, 
Wilson  Carey  Nicholas,  Senator  from  Mrginia. 
After  urging  the  President  to  keep  his  ideas  con- 
corning  the  unconstitutionaUty  of  the  treaty  to 
himself,  he  added,  ''I  should  think  it  very  probable 
if  the  treaty  should  be  declared  by  you  to  exceed 
the  constitutional  authority  of  the  treaty-making 
power,  it  would  be  rejected  by  the  Senate.  .  .  ."  ^ 
As  few  men  were  more  closely  in  touch  with  the 
Republican  majority  in  the  Senate  of  1803  than 
Nicholas  this  danger  may  have  been  real.  At  any 
rate,  the  advice  was  followed. 

By  the  end  of  September  the  President  had 
formulated  the  outline  of  his  message  to  Congress. 
One  proposal  in  the  draft  which  he  submitted  to  the 
members  of  his  cabinet  gave  rise  to  an  interesting 
discussion  on  the  propriety  of  submitting  a  treaty 
to  the  House  before  the  Senate  had  acted  upon  it. 
In  order  to  complete  the  purchase  as  speedily  as 
possible,  Jefferson  had  indicated  his  intention  of 
laying  the  treaties  before  both  Houses  of  Congress 
at  once.  On  October  1,  Madison  returned  the 
President's  notes  upon  the  draft  message,  recom- 
mending that  this  section  be  altered  to  read,  ''These 
stipulations  (instruments)  will  inunediately  be  laid 
before  the  Senate,  and  if  sanctioned  by  its  concur- 
rence will  without  delay  be  communicated  to  the 
House  of  Reps.  ..."  Such  a  modification,  ]\Iadi- 
son  continued, 

1  Nicholas  to  Jefferson,  September  2,  1S03.  Adams,  HiMory 
of  the  United  Slates,  II.  88,  citing  Jefferson  Mss. 


140  THE    SENATE    AND   TREATIES 

will  also  avoid  what  the  theory  of  our  constitution  does 
not  seem  to  have  met  [meant],  the  influence  of  delibera- 
tions and  anticipations  of  the  H.  of  Reps,  on  a  Treaty 
depending  in  the  Senate.  It  is  not  conceived  that  the 
course  here  suggested  can  produce  much  delay,  since  thie 
terms  of  the  treaty  being  sufficiently  known,  the  mind 
of  the  House  can  be  preparing  itself  for  the  requisite 
provisions.  Delay  would  be  more  hkely  to  arise  from 
the  novelty  and  doubtfulness  of  a  communication  in  the 
first  instance,  of  a  treaty  negotiated  by  the  executive, 
to  both  Houses  for  their  respective  deliberations. ^ 

Gallatin  took  practically  the  same  position  in 
the  remarks  on  the  proposed  message  which  he 
handed  to  the  President  four  days  later.  He  ob- 
served : 

It  seems  to  me  that  the  treaty  ought  not  be  laid  be- 
fore both  Houses  of  Congress  until  after  ratification  by 
Senate.  The  rights  of  Congress  in  its  legislative  capacity 
do  not  extend  to  making  treaties,  but  only  to  giving  or 
refusing  their  sanction  to  those  conditions  which  come 
within  the  powers  granted  by  the  Constitution  to  Congress. 
The  House  of  Representatives  neither  can  nor  ought  to 
act  on  the  treaty  until  after  it  is  a  treaty;  and  if  that  be 
true  no  time  will  be  gained  by  an  earlier  communication 
to  that  body.  In  asserting  the  rights  of  the  House,  great 
care  should  be  taken  to  do  nothing  which  might  be  rep- 
resented as  countenancing  any  idea  of  encroachment  of 
the  constitutional  rights  of  the  Senate.  If,  in  order  to 
be  able  to  carry  on  a  negotiation,  the  Executive  wants  a 
previous  grant  of  money  or  other  legislative  act,  as  in 
the  Algerine  treaty,  some  Indian  tribes,  and  last  session 
(2)  two  millions  appropriation,  an  application  may  be 
necessary  before  the  negotiation  is  opened  or  the  treaty 
held;  but  when  as  in  the  present  case,  the  iu>gotiation 
has  been  already  closed  and  the  treaty  signed,  no  necessity 
exists  to  consult  or  communicate  to  the  House  until  the 
»  Writings  of  Thomas  Jefferson  (Ford  ed.),  VIII.  266n. 


THE   TREATIES   OF   THOMAS   JEFFERSON  141 

instruinont  shall  have  been  completed  by  the  Senate,  and 
President's  ratification :  in  this  instance  there  is  no  appar- 
ent object  for  the  communication  but  a  supposition  that 
they  may  act,  or,  in  other  vvoids,  express  their  opinion 
and  give  their  advice  on  the  inchoat(>  instrument,  which 
is  at  that  very  time  constitutionally  Ix'fore  the  Senate.' 

A  comparison  of  the  two  opinions  shows  that  both 
secretaries  based  their  objections  to  a  simultaneous 
communication  of  the  treaties  to  both  Houses  upon 
two  main  grounds.  The  first  is  one  of  principle 
—  it  ought  not  to  be  done.  Madison  states  this 
most  clearly  when  he  says  that  the  theory  of  the 
Constitution  does  not  seem  to  have  intended  that 
the  deliberations  of  the  Senate  upon  an  unratified 
treaty  should  be  influenced  by  its  discussion  in  the 
House.  He  might  have  gone  farther  and  pointed 
out  that  submission  to  the  larger  chamber  probably 
would  be  the  equivalent  of  publication.  In  this 
event  the  Senate  would  be  subjected  to  influence 
not  only  from  the  House  but  from  the  people  as 
well.  That  the  application  of  such  influence  would 
very  seriously  curtail,  if  not  practically  destroy 
the  power  of  the  Senate  to  decide  independently 
the  question  of  ratification  is  obvious.  This  con- 
clusion doubtless  led  to  the  second  objection  to 
Jefferson's  proposal  which  was  one  of  expediency. 
Madison  and  Gallatin  agreed  that  the  innovation 
at  this  time  would  tend  to  delay  rather  than  to 
expedite  action.  Probably  both  statesmen  were  con- 
fident that  the  Senate  would  resist  any  such  en- 
croachment upon  its  constitutional  powers  and 
feared  that  such  resistance  might  delay  and  possibly 

'   Writiugti  of  Albert  Gallatin  (ed.  Henry  Adams),  I.  154-156. 


142  THE    SENATE    AND    TREATIES 

jeopardize  the  passage  of  the  resohition  of  advice 
and  consent  to  ratification.  Jefferson  decided  to 
follow  their  advice  in  the  matter  and  the  treaties 
were  not  laid  before  the  House  until  after  they  had 
been  ratified. 

When  Congress  met  on  October  17,  the  Presi- 
dent, in  announcing  the  signature  of  the  treaties  in 
his  message  to  both  Houses,  said,  "When  these 
shall  have  received  the  constitutional  sanction  of 
the  Senate,  they  will  without  delay  be  communi- 
cated to  the  Representatives  also  for  the  exercise 
of  their  functions  as  to  those  conditions  which  are 
within  the  powers  vested  by  the  Constitution  in 
Congress."  The  treaties  were  at  once  communi- 
cated to  the  Senate.  The  message  stated  that  the 
ratification  of  the  First  Consul  was  in  the  hands 
of  his  Charge  d'Affaires  here,  to  be  exchanged 
''whensoever,  before  the  30th  instant,  it  should  be 
in  readiness."  Three  days  later  advice  and  consent 
to  ratification  was  given  by  a  vote  of  24  to  7.  The 
promptness  of  this  action  undoubtedly  is  to  be  at- 
tributed to  the  presence  of  an  overwhelming  Re- 
publican majority  under  the  thorough  control  of 
the  administration.  Little  is  known  of  the  debates 
during  these  three  days,  but  it  is  likely  that  in  the 
main  they  were  along  the  same  lines  that  were  fol- 
lowed during  the  later  discussion  of  the  measures 
for  putting  the  treaty  into  effect.^ 

From  the  standpoint  of  a  study  of  the  treaty-mak- 
ing powers  of  the  Senate,  however,  perhaps  the  most 
interesting  action  in  connection  with  the  Louisiana 
treaty  was  taken  after  the  adoption  of  the  resolu- 

1  Se7i.  Exec.  Jour.,  I.  449-450. 


THE    TREATIES   OF   THOMAS   JEFFERSON  143 

tion  of  advice  and  consent.  In  public  discussion 
the  constitutionality  of  the  treaty  had  been  attacked 
upon  two  grounds.  First  it  was  declared  that  the 
President  and  the  Senate  had  no  authority  to  acquire 
Louisiana  by  treaty;  secondly,  that  part  of  the 
treaty  which  provided  for  the  future  incorporation 
of  the  territory  into  the  union  was  declared  to  be 
even  more  obviously  beyond  the  powers  of  the  treaty- 
making  part  of  the  government.  No  sooner  had 
the  Republican  members  of  the  Senate  procured 
the  agreement  of  the  chamber  to  ratification  than 
the  following  resolution  was  introduced  by  Pierce 
Butler,  Federahst   member   from   South   Carolina:  ^ 

Resolved,  That  the  President  of  the  United  States  be 
requested  to  obtain  from  the  French  Republic,  such  a 
modification  of  the  3d  article  of  the  treaty,  as  will  leave 
the  government  of  the  United  States  at  liberty  to  make 
such  future  arrangements,  or  disposition  of  the  territory 
of  Louisiana,  as,  in  their  wisdom,  may  best  promote  the 
general  interest;  always  securing  to  the  free  inhabitants 
of  Louisiana,  protection  in  their  persons,  security  in 
their  property,  and  the  free  and  open  enjojTnent  of  their 
religion. 2 

The  object  of  the  desired  modification  was,  of 
course,  to  release  the  nation  from  its  pledge  to  in- 
corporate the  inhabitants  of  the  ceded  territory 
into  the  union.     Had  it  been  secured  one  of  the  two 

1  Under  date  of  October  28,  John  Quincy  Adams  recorded  in  his 
diar\-,  "Attended  in  Senate.  Mr.  Butler's  resohition  for  a  furl  fur 
negotiation  with  France,  under  consideration,  debated  until  past 
three  p.m.,  when  we  adjourned."  Memoirs  of  Joint  Quincy  Adams, 
I.  268.  Also  on  November  4  he  noted  that,  "Mr.  Butler's  proposed 
resolution  for  a  new  negotiation  with  France  was  resumed  and 
negatived."     Ibid.,  I.  271. 

2  Sen.  Exec.  Jour.,  I.  450. 


144  THE    SENATE   AND   TREATIES 

great  constitutional  objections  to  the  treatj'^  would 
have  been  obviated.  The  proposition  was  debated 
on  the  twenty-first  and  the  twenty-second.  On  the 
twenty-first,  however,  the  President  had  ratified  the 
treaties  and  had  exchanged  his  ratification  for  that 
of  the  First  Consul.  Saturday  the  twenty-second, 
the  completed  instruments  were  laid  before  both 
Houses  with  a  request  for  legislation  to  make  them 
effective.^  When  the  Senate  met  again  on  Monday 
it  declined  to  resume  consideration  of  the  Federalist 
resolution-  and  proceeded  to  provide  the  legislation 
which  the  President  had  asked  for. 

On  Friday,  the  twenty-eighth,  the  Senate  bill  to 
enable  the  President  to  take  possession  of  the  ceded 
territory  having  been  passed,  and  the  House  bill 
appropriating  funds  to  pay  for  it  not  having  been 
sent  up,  debate  on  Butler's  motion  of  the  twentieth 
was  resumed.^  Following  this,  the  Senate  debated 
the  purchase  appropriation  bill  from  the  House  until 
November  3,  when  the  measure  was  agreed  to.^ 
Thus,  in  its  legislative  capacity,  the  Senate  had  done 
what  was  necessary  to  put  the  treaty  into  effect. 
It  then  immediately  went  into  executive  session  for 
the  consideration  of  the  resolution  advising  the  Presi- 
dent to  attempt  to  secure  a  modification  of  Article 
3.  This  proposal  had  support  from  both  sides  of 
the  house.  But  when  it  came  to  a  vote  it  was 
defeated  9  to  22,  four  Federahsts  and  five  Republi- 
cans being  found  in  the  affirmative.^ 

'  Annals  of  Congress,  1803-1804,  pp.  17-18. 

-  Sen.  Exec.  Jour.,  I.  4.")1. 

3  Sen.  Exec.  Jour.,  I.  4.")1;    Aunnh  of  Congress,  1803-1804,  p.  27. 

*  Annals  of  Congres.^,  180:3-1804,  p.  7.5.  *  Ibid.,  p.  452. 


THE    TREATIES   OF   THOMAS   JEFFERSON  145 

Very  little  reference  to  this  proposal  is  to  be 
found  in  the  c'orresiM)n(len('o  of  the  men  involved. 
It  seems  obvious  that  the  resolution  never  had  a 
chance  of  adoption;  and  had  the  Senate  presented 
it  to  the  President,  the  latter  would  have  been  free 
to  follow  or  to  ignore  the  suggestion.  It  is  clear, 
however,  that  the  recjuest  was  a  perfectly  proper 
one  to  be  made  by  the  Senate.  That  it  was  pro- 
posed, seriously  debated,  and  supported  by  members 
from  both  parties  is  another  interesting  example  of 
the  fact  that  the  Senate  has  always  felt  that  it  is 
as  much  within  its  constitutional  powers  to  sug- 
gest the  initiation  of  a  negotiation  as  to  pass  upon 
a  treaty  already  consummated  by  the  executive. 


THE    KING-HAWKESBURY   CONVENTION 

The  King-Haw kesbury  Convention  of  May  12, 
1803,  was  the  first  treaty  to  be  lost  by  the  refusal 
of  the  other  signatory  to  accept  an  amendment  pro- 
posed by  the  United  States  Senate.  This  conven- 
tion provided  for  the  fixing  of  the  northeastern  and 
northwestern  boundaries  between  the  Vnited  States 
and  British  territory.'  That  part  of  the  northwest 
boundary  between  the  Lake  of  the  Woods  and  the 
Mississippi  had  been  described  by  the  second  article 
of  the  treaty  of  1783  as  running  due  west  from  the 
most  northwestern  point  of  the  lake  to  the  river. 
Subsequently  it  was  discovered  that  such  a  line 
would  not  intersect  the  Mississippi.  The  fifth 
article   of   the   convention    signed    by   Rufus   King 

1  The  northwestern  boundary  (jutstitn  is  trtatcd  in  liccvcs, 
American  Diplomacy  Under  Tyler  and  Polk,  Ch.  VIII. 


146  THE    SENATE   AND    TREATIES 

and  Lord  Hawkesbury  rectified  the  error  by  stipu- 
lating that  the  boundary  in  this  quarter  should  be 
the  shortest  line  which  could  be  drawn  from  the 
northwest  point  of  the  Lake  of  the  Woods  to  the 
nearest  source  of  the  Mississippi.  It  was  provided, 
too,  that  at  the  request  of  either  party  commis- 
sioners should  be  appointed  to  determine  these* 
points  and  to  run  the  line.^ 

This  convention  was  laid  before  the  Senate  on 
October  24,  four  days  after  the  passage  of  the 
resolution  advising  the  ratification  of  the  treaties 
by  which  Louisiana  was  acquired  from  France.^ 
The  Senate  seems  to  have  become  alarmed  at  once 
over  the  possibility  of  our  rights  under  the  Louisi- 
ana purchase  being  prejudiced  by  the  terms  of  the 
fifth  article  of  the  convention  with  England.  John 
Quincy  Adams  records  in  his  diary  that  on  October 
31,  ''Mr.  S.  Smith  intimated  that  since  the  ratifica- 
tion of  the  Louisiana  Treaty  this  one  must  not  be 
ratified  at  all."  ^  When  the  matter  was  next  dis- 
cussed, Senator  Wright  objected  to  ratification  be- 
cause he  feared  possible  interference  between  this 
treaty  and  that  containing  the  cession  of  Louisi- 
ana.^    On   November    15,    the   convention   was   re- 

»  The  convention  and  the  correspondence  submitted  to  the 
Senate,  together  with  documents  explaining  the  action  of  the  Senate 
in  amending  the  treaty  by  striking  out  the  fifth  article  are  printed 
in  Am.  State  Papers,  For.  Rels.,  II.  584-591. 

2  Sen.  Exec.  Jour.,  I.  4.50-451.  Two  days  before  the  treaty  was 
submitted  to  the  Senate  Madison  wrote  to  the  American  ministers 
in  Paris,  Madrid,  and  London  expressing  his  confidence  that  the 
Senate  would  concur  in  the  ratification  of  the  treaty.  Ms.  State 
Department,  U.  S.  Ministers,  Instructions,  XI.  153. 

3  Memoirs  of  John  Quincy  Adams,  1.  269. 
*  Ibid.,  p.  271. 


THE   TREATIES   OF   THOMAS   JEFFERSON  147 

f erred  to  a  select  committee  composed  of  Adams, 
Nicholas,  and  Wright.' 

After  its  chairman  hatl  conferred  with  Madison, 
personally  '  and  by  letter,  the  committee  presented 
the  following  report: 

That,  from  the  infonnatioii  they  have  ol)tained,  they 
are  sati.>^fied  that  the  said  ti-eaty  was  drawn  up  by  Mr. 
King  three  weeks  before  the  signature  of  the  treaty  with 
the  French  Republic  of  the  30th  of  April,  and  signed  by 
Lord  Hawkesbury,  without  the  alteration  of  a  word; 
that  it  had,  in  the  intention  of  our  minister,  no  reference 
whatever  to  the  said  treaty  with  the  P^rench  Republic, 
inasmuch  as  he  had  no  knowledge  of  its  existence.  But, 
Not  having  the  means  of  ascertaining  the  precise  northern 
limits  of  Louisiana,  as  ceded  to  the  United  States,  the 
committee  can  give  no  opinion  whether  the  line  to  be 
drawn,  by  virtue  of  the  third  [sic]  article  of  the  treaty 
with  Great  Britain,  would  interfere  with  the  said  northern 
limits  of  Louisiana  or  not.^ 

Adams  and  most  of  his  Federalist  colleagues  be- 
lieved that  in  these  circumstances  the  fifth  article 
could  not  be  construed  in  derogation  of  any  rights 
which  the  United  States  obtained  by  the  purchase 
of    Louisiana.^    But  the   Republican  majority  did 

'  ,SV//.  Exec.  Jour.,  I.  454. 

2  Memoirs  of  John  Quincy  Adams,  I.  273,  274.  On  the  seven- 
teenth Adams  recorded  that  he  had  called  on  Madison  who  did  not 
approve  of  the  resolution  for  the  conditional  ratification  of  the  treaty. 

3  Am.  Slate  Papers,  For.  Rebs,  II.  590;  See  Life  ami  Correspond- 
ence of  Riifus  King,  IV.  xxii,  for  evidence  that  this  convention  was 
signed  without  knowledge  of  the  French  treaties  of  April  30. 

"  On  the  ciue.stion  "Will  the  Senate  advise  and  consent  to  the 
ratification  of  the  5th  article?"  .\dams,  Bradley,  Dayton.  Hillhouse. 
Olcott,  Pickering,  Plunier,  Israel  Smith,  anil  Tracy  voted  yea. 
Of  these  all  were  Federalist  except  Bradley,  Olcott  and  Smith, 
Samuel  Wright  of  New  Jersey  was  the  only  Federalist  voting  nay. 
Sen.  Exec.  Jour.,  I.  463. 


148  THE    SENATE   AND   TREATIES 

not  care  to  run  any  risks  in  the  matter,  and  on 
February  9,  1804,  the  Senate  voted,  22  to  9,  to 
strike  the  fifth  article  from  the  treaty.  It  was 
then  unanimously  agreed  to  advise  the  ratification 
of  the   convention  with   this  amendment.^ 

Although  the  rejection  of  the  article  concerning 
the  northwestern  boundary  had  not  met  with  the 
approval  of  Madison,  he  at  once  sent  to  James 
Monroe,  who  had  succeeded  King  at  London,  in- 
structions to  secure  the  exchange  of  ratifications 
with  the  British  government.  In  these  instructions 
Madison  explained  the  action  of  the  Senate  and  ad- 
vanced four  reasons  which  led  him  to  think  that 
the  British  government  would  accept  the  altera- 
tion. First,  inasmuch  as  at  the  time  when  the  in- 
structions were  drawn  up  and  the  convention  signed, 
neither  party  was  aware  of  the  conclusion  of  the 
treaties  ceding  Louisiana,  it  would  be  unreasonable 
that  this  convention  should  operate  to  restrict  ter- 
ritorial rights  gained  by  the  United  States  from 
France.  Second,  if  the  fifth  article  were  expunged 
the  northern  boundary  of  Louisiana  would  remain 
the  same  in  the  hands  of  the  United  States  as  it 
had  been  in  the  hands  of  France;  and  it  might  be 
adjusted  and  established  according  to  the  same 
principles  which  in  that  case  would  have  been  ap- 
plicable. Third,  there  was  reason  to  believe  that 
the  boundary  between  Louisiana  and  the  British 
territory  north  of  it  actually  had  been  fixed  by 
commissioners  appointed  under  the  Treaty  of  Ut- 
recht, and  that  a  line  run  in  accordance  with  article 
five  would   pass   through   territory   which  on   both 

'  ScN.  Exec.  Jour.,  T.  4()3-4G4. 


THE    TREATIES    OF   THOMAS    JEFFERSON'  149 

sides  of  tlie  line  would  belong;  to  the  United  States. 
Fourth,  the  adjustment  of  this  line  would  be  left 
open  for  future  negotiation  —  a  situation  which  in 
the  past  Great  Britain  had  seemed  anxious  to  bring 
about.  ^ 

The  receipt  of  these  instructions  was  acknowledged 
by  Monroe  in  April.'-  Not  deeming  it  worth  while, 
however,  to  press  American  concerns  upon  the  de- 
clining Addington  ministry,  our  minister  took  no 
steps  to  secure  an  exchange  of  ratifications  until 
Addington  had  given  way  to  Pitt,  and  Lord  Har- 
rowby  had  superseded  Lord  Hawkesbury  in  the 
Foreign  Office.  In  the  new  Secretary  of  State  for 
Foreign  Affairs,  Monroe  had  to  deal  with  one  who 
regarded  the  Ignited  States  and  its  aspirations  with 
intolerance,  if  not  with  contempt.  Moreover,  as 
has  been  the  case  with  some  other  English  officials 
of  small  caliber,  Harrowby  did  not  consider  it  worth 
while  to  conceal  his  feelings  from  the  representative 
of  the  former  British  colony.  In  his  criticism  of 
the  American  government  for  ratifying  the  King- 
Hawkesbury  convention  with  the  exception  of  the 
fifth  article  he  certainly  did  not  confine  himself  to 
"diplomatic  expressions,"  but  used  language  which 
Monroe  deemed  to  be  '^calculated  to  wound  and 
irritate." 

In  a  letter  to  Madison  dated  June  3,  ]Monroe  re- 
ported the  position  taken  by  Harrowby  on  the 
practice  of  the  Senate  in  ratifying  treaties  with 
alterations,  and  gave  an  account  of  his  interview 
on  the  subject.     Monroe  wrote: 

1  Am.  State  Papers,  For.  Reh.,  III.  S9-90. 

-  Monroe  to  Madison,  April  2t>,  1S04,  Writings  of  James  Monroe, 
IV.  170. 


150  THE    SENATE    AND    TREATIES 

He  censured  in  strong  terms  the  practise  into  which 
we  had  fallen  of  ratifying  treaties,  with  exceptions  to 
parts  of  them,  a  practise  which  he  termed  new,  un- 
authorized and  not  to  be  sanctioned.  I  replied  that 
this  was  not  the  first  example  of  the  kind;  that  he  must 
recollect  one  had  been  given  in  a  transaction  between  our 
respective  nations  in  their  treaty  of  1794;  that  in  that 
case  the  proposition  for  a  modification  in  that  mode  was 
well  rec'd,  and  agreed  to;  that  to  make  such  a  proposi- 
tion was  a  proof  of  an  existing  friendship  &  a  desire  to 
preserve  it;  that  a  treaty  was  not  obligatory  'till  it  was 
ratified,  and,  in  fact  was  not  one  'till  then.  He  said  that 
the  doctrine  was  not  so  clear  as  I  had  stated  it  to  be; 
that  there  were  other  opinions  on  it,  and  seemed  to 
imply,  tho'  he  did  not  state  it,  that  an  omission  to  ratify 
did  an  injury  to  the  other  party  of  a  very  serious  kind. 

Monroe  then  explained  why  the  fifth  article  had  been 
excepted  from  the  ratification,  after  which  Harrowby 

observed  with  some  degree  of  severity  in  the  manner, 
in  substance,  as  well  as  I  recollect,  that,  having  dis- 
covered since  this  treaty  was  formed,  that  you  had  ceded 
territory  which  you  do  not  wish  to  part  from,  you  are 
not  disposed  to  ratify  that  article. 

Monroe  denied  this  and  advanced  the  arguments 
set  forth  in  his  instructions.  The  Englishman, 
however,  "repeated  again  the  idea  which  he  first 
expressed,  implying  strongly  that  we  seemed  de- 
sirous of  getting  rid  of  an  article  in  finding  that  it 
did  not  suit  us."  ^ 

'  Monroe  to  Madison,  June  3,  1804.  .4//;.  Stittc  Papers,  For. 
Rels.,  III.  92-94.  It  is  only  fair  to  add  that  on  June  23  Monroe 
wrote  that  he  had  come  to  the  conclusion  that  Harrowby 's  ill  man- 
ners durinp;  the  above  described  interview  were  due  to  a  state  of 
mind  whic-h  he  was  in  at  the  time  and  were  the  result  of  a  momentary 
impulse  rather  evidence  of  an  unfriendly  policy  towards  the  United 
States.  Monroe  to  Madi.son,  June  23,  1804,  Writiugs  of  James 
Monroe,  IV.  197  n. 


THE   TREATIES   OF   THOMAS   JEFFERSON  l.")l 

Although  this  unfriendly  and  uncompromising  at- 
titude on  the  part  of  the  British  ministers  made 
Monroe's  task  exceedingly  disagreeable,  he  con- 
tinued to  urge  an  acceptance  of  the  amended  treaty. 
On  September  1  in  a  long  interview  concerning  the 
various  points  at  issue  between  the  two  countries 
he  repeated  all  of  his  arguments,  and  afterwards 
sent  them  in  written  form  for  submission  to  the 
cabinet.'  But  Harrowby  and  the  ministry  were 
not  to  be  moved.  Instructions  addressed  to  An- 
thony Merry,  British  Minister  at  Washington, 
under  the  date  of  November  7,  1804,  stated  that  his 
Majesty's  government  would  at  all  times  be  ready 
to  reopen  the  whole  subject : 

but  they  can  never  acquiesce  in  the  precedent  which  in 
this  as  well  as  in  a  former  instance  the  American  govern- 
ment has  attempted  to  establish,  of  agreeing  to  ratify 
such  parts  of  a  convention  as  they  may  select,  and  of 

1  Writitigs  of  James  Monroe,  IV.  245.  Monroe  to  Madison, 
September  8,  1804.  Am.  State  Papers  For.  Rels.,  III.  95-98.  Mon-. 
roe  reported  his  action  at  this  time  in  the  following;  words:  "We 
then  proceeded  to  examine  the  convention  respecting  the  boundaries 
in  the  light  in  which  the  ratification  presented  it.  On  that  subject 
also  I  omitted  nothing  which  the  documents  in  my  possession 
enabled  me  to  say;  in  aid  of  which  I  thought  it  advisable,  a  few 
days  afterwards,  to  send  to  his  Lordship  a  note  explanatory  of  the 
motives  which  induced  the  President  and  the  Senate  to  decline 
ratifying  the  fifth  article.  As  the  affair  had  become  by  that  cir- 
cumstance in  .some  degree  a  delicate  one,  and  as  it  was  in  its  nature 
intricate,  I  thought  it  improper  to  let  the  ex})lanation  which  I  had 
given  rest  on  the  memory  of  a  single  individual.  By  committing 
it  to  paper,  it  might  better  be  understood  by  Lord  Harrowby  and 
the  cabinet,  to  whom  he  will  doubtless  submit  it."  A  copy  of  this 
paper  was  sent  to  Madison.  It  traces  the  history  of  the  boundary 
line  in  question  and  explains  why  the  fifth  article  of  the  convention 
was  rendered  nugatory  by  t  he  cession  of  Louisiana. 


152  THE    SENATE    AND    TREATIES 

rejecting  other  stipulations  of  it,  formally  agreed  upon 
by  a  minister  invested  with  full  powers  for  that  purpose.' 

The  matter  of  the  boundary  was  not  again  pressed, 
however,  until  the  Grenville  ministry  was  formed 
in  1806.  Monroe  then  outlined  the  situation  to 
Charles  James  Fox  as  soon  as  that  statesman  had 
taken  possession  of  the  seals  of  the  foreign  office. - 
In  February  he  submitted  to  Fox  a  review  of  the 
previous  negotiations  between  himself,  and  Hawkes- 
bury  and  Harrowby.  In  this  document  he  re- 
iterated the  familiar  arguments  for  the  ratification 
of  the  boundaries  convention  minus  the  fifth  article.^ 
But  the  new  ministry  proved  to  be  as  reluctant  to 
countenance  this  innovation  in  treaty-making  as 
had  been  the  old.  Fox,  to  be  sure,  was  more  courte- 
ous —  conciliatory  was  the  word  Monroe  used  — 
than  his  predecessor  had  been;  ^  but  the  treaty  was 
not  ratified.  In  IMay,  when  Pinckney  was  sent  to 
join  Monroe  in  an  effort  to  settle  the  differences 
between  the  two  nations,  the  latter  was  given  a 
special  instruction  with  reference  to  this  question. 
If  the  British  government  dechned  to  ratify  with 
the  omission  of  the  fifth  article,  and  was  willing  to 
do   so   with   a   proviso   ''against   any   constructive 

1  Adams,  History  of  the  Utnted  States,  II.  424.  Reference  to  MS. 
British  Archives.  In  October  Monroe  left  London  on  a  special 
mission  to  Madrid,  after  having  left  open  for  future  negotiation  this 
and  other  questions  pending  between  England  and  the  United  States. 
Monroe  to  Madison,  October  3,  1804.  Am.  State  Papers,  For.  Rels., 
III.  98-99. 

»  Monroe  to  Madison,  February  12,  1806.      Ibid.,  pp.  112-3. 

^  Monroe  to  C.  J.  Fox,  February  25,  1806.     Ibid.,  pp.  113-114. 

*  Monroe  to  Madison,  March  11,  1806.  MS.  Department  of 
State,  England,  12,  James  Monroe. 


THE    TREATIES   OF   THOMAS   JEFFERSON  153 

effect  of  the  Louisiana  convention  on  the  intention 
of  the  parties  at  the  signature  of  the  depending 
convention"  he  was  to  "concur  in  the  alteration 
with  a  view  to  bring  the  subject  in  that  form  be- 
fore the  ratifying  authority  of  the  United  States.'" 
This  ]3roposition,  however,  probably  never  was 
presented  to  Fox,  who  was  taken  ill  soon  after  the 
arrival  of  Pinckney  in  London.'-  After  the  un- 
fortunate Monroe-Pinckney  treaty  had  been  signed 
negotiations  were  entered  into  for  a  supplemental 
convention  relative  to  boundaries.^  But  the  ef- 
fort produced  no  settlement  and  the  matter  was 
reserved  for  future  discussion. 

The  King-Hawkesbury  convention,  however,  was 
now  finally  recognized  by  the  United  States  to  be 
impossible  of  perfection.  The  subsequent  history 
of  the  boundary  controversy  suggests  very  forcibly 
that  at  this  time  England  may  have  been  glad  of 
a  legitimate  excuse  for  not  ratifying  the  convention 
which  Hawkesbury  had  signed.  The  rejection  by 
the  Senate  of  Article  5  gave  her  such  an  excuse 
—  one  probably  all  the  more  appreciated  because  it 
enabled  her  to  put  the  United  States  in  the  wrong 
in  the  matter.  This  was  not  the  last  occasion 
upon  which  the  action  of  the  Ignited  States  Senate 
gave  to  another  nation  the  opportunity  to  retire 
gracefully  from  an  agreement  which  it  had  come  to 
regret. 

As  has  been  said,  the  King-Hawkesbury  conven- 

'  Madison  to  Monroe,  May  1."),  1800,  Am.  State  Pnpcrs  For. 
Rels.  III.  119. 

^  Ilrid.,  pp.  128-132  pass^im. 

^  Monroe  and  Pinckney  to  Madison,  April  25,  1807.  Ibid.,  p.  102. 


154  THE    SENATE    AND    TREATIES 

tion  was  the  first  treaty  to  remain  unperfected  be- 
cause the  other  party  refused  to  acquiesce  in  a 
quahfied  ratification  by  the  United  States.  Further, 
this  is  the  only  occasion  upon  which  another  govern- 
ment has  ever  dechned  to  proceed  with  ratification 
for  the  simple  reason  that  it  refused  to  accept 
the  principle,  that  on  account  of  its  constitutional 
system  the  United  States  should  be  allowed  to 
modify  in  ratification  a  treaty  signed  by  its  ministers 
in  accordance  with  their  instructions.  Lord  Har- 
rowby's  remarks  to  Monroe  on  this  subject  were 
not  marked  by  the  depth  of  the  scholar,  the  suavity 
of  the  diplomat,  or  the  vision  of  the  statesman. 
Undoubtedly,  however,  he  spoke  truly  when  he 
told  the  American  minister  that  the  practice  into 
which  his  country  had  fallen  of  ratifying  treaties 
with  exceptions  to  parts  of  them  was  new  and  un- 
authorized.^ It  was  new  because,  until  the  Con- 
stitution of  the  United  States  had  given  to  the 
Senate  a  voice  in  treaty-making,  the  nations  of  the 
world  had  commonly  granted  to  those  parts  of  their 
governments  which  negotiated  treaties,  authority  to 
ratify  them;  and  with  rare  exceptions  treaties  were 
ratified  as  signed.  It  was  unauthorized  because  by 
the  then  generally  accepted  rules  of  international 
law  a  sovereign  was  bound  to  ratify  what  his  min- 
ister, acting  under  full  powers  and  within  his  in- 
structions, had  agreed  to.  Failure  to  ratify  without 
extremely  cogent  reasons  for  refusal  might  be  con- 
sidered as  a  grave  breach  of  faith.  When  Harrowby 
intimated  that  "an  omission  to  ratify  did  an  injury 

'  See  Moore,  1  ntcriiaiumal  Law  Digest,  V.  184-202,  for  thorough 
discussion  of  this  point  in  international  law. 


THE   TREATIES   OF   THOMAS   JEFFERSON  155 

to  the  other  party  of  a  very  serious  kind"  he  was 
only  expressing  the  generally  accepted  doctrine  of 
his  time. 

The  United  States,  in  fact,  was  introducing  a  new 
principle  into  the  diplomatic  practice  of  the  world. 
She  had  made  her  treaties  a  part  of  the  supreme 
law  of  the  land  and  therefore  had  given  to  the  upper 
chamber  of  her  legislature  a  part  in  enacting  them. 
She  was  a  federal  state  and  as  such  had  given  to  the 
representatives  of  her  component  parts  a  voice  in 
making  the  treaties  which  bound  them.  She  was 
a  democracy  and  as  such  had  declined  to  entrust 
the  superlatively  important  function  of  treaty- 
making  to  the  executive  alone.  Thus  the  ver}- 
terms  of  her  being  went  far  towards  determining 
the  manner  in  which  her  relations  with  the  other 
members  of  the  family  of  nations  were  to  be  carried 
on.  But  as  she  was  the  first  of  her  kind,  the  pre- 
existing rules  of  international  intercourse  made  no 
provision  for  her  unique  method  of  making  treaties, 
and  when  the  action  of  her  Senate  made  it  necessary 
for  her  executive  either  to  offer  to  ratify  a  treaty 
with  modifications  or  to  decline  ratification  at  all, 
this  method  brought  her  into  conflict  with  the 
established  order  of  things. 

In  these  circumstances  it  was  inevitable  that, 
sooner  or  later,  she  would  encounter  a  Lord  Har- 
rowby.  For  in  this  situation  his  Lordship  occupied 
a  position  for  which  he  was  eminently  fitted  and 
which  he  doubtless  would  have  been  proud  to  fill  — 
that  of  the  champion  of  things  as  they  are.  Hence 
his  declaration  that  the  American  practice  not  only 
was   new   and   unauthorized,    but   was   not   to   be 


156  THE    SENATE   AND   TREATIES 

sanctioned.  In  the  ease  of  the  King-Hawkesbury 
convention  the  established  order  of  things  pre- 
vailed; the  modified  treaty  never  was  perfected. 
But  that  which  the  British  minister  lacked  the 
vision  to  see  came  to  pass.  Upon  many  later 
occasions  Senate  amendments  to  treaties  were  sub- 
mitted to  the  other  party  to  the  agreements  ac- 
companied by  lengthy  explanations  of  the  features 
of  the  governmental  system  of  the  United  States 
which  put  it  in  the  power  of  the  Senate  to  compel 
such  action.  And  in  due  time  the  world  consented 
to  deal  with  the  United  States  in  the  manner  made 
necessary  by  her  form  of  government.  To-day 
what  British  ministry  ^  would  attempt  to  force  the 
United  States,  with  her  system  of  treatj^-making, 
into  the  mold  provided  for  those  states  which  still 
perform  this  function  of  government  under  the 
ancient  principles?  Indeed,  England  and  practic- 
ally every  other  democracy  have  now  provided 
some  method  by  which  the  representatives  of  the 
people  may  have  a  voice  in  determining  what 
manner  of  treaties  shall  be  made.  The  success 
of  the  American  experiment  demonstrated  the  prac- 
ticability of  such  a  system,  and  paved  the  way  for 
similar  democratic  developments  in  other  nations. 

JOHN    QUINCY   ADAMS   AND    THE    TREATY    OF 
1805   W^ITH    TRIPOLI 

Although  finally  ratified  without  amendment, 
the  treaty  of  peace,  amity,  and  commerce  concluded 

>  Henry  Cabot  Lodge's  admirable  essay,  "The  Treaty-making 
Powers  of  the  Senate,"  was  occasioned  by  such  a  misunderstanding 
on  the  part  of  Lord  Lansdowne  in  1901,  however. 


THE    TREATIES   OF   THOMAS   JEFFERSON  157 

with  Tripoli  Juno  4,  1805,  was  before  the  Senate 
from  December  of  that  year  until  the  following 
April,  and  was  the  subject  of  prolonged  and  acri- 
monious debate  in  that  body.^  By  their  insatiable 
greed  and  unfailing  bad  faith,  the  piratical  rulers 
of  the  Barbary  states  finally  had  convinced  the 
government  of  the  United  States  that  one  fight 
would  be  cheaper  than  continual  blackmail  — 
that  it  would  cost  less  to  win  a  peace  than  annually 
to  buy  one.  Consequently  in  the  spring  of  1805 
practically  every  sea-going  vessel  in  the  American 
navy  was  in  the  Mediterranean,  for  the  purpose 
of  bringing  to  a  successful  conclusion  the  naval 
campaign  which  had  been  carried  on  for  several 
years.  Pressure  of  the  fleet,  and  fear  of  a  band  of 
adventurers  under  the  leadership  of  William  Eaton, 
an  American  soldier  of  fortune,  and  Hamet  Cara- 
malli,  a  rival  claimant  of  the  throne,  finally  brought 
the  ruling  Bashaw  of  Tripoli  to  the  point  of  con- 
sidering a  permanent  treaty  of  peace  with  the 
United  States.  This  treaty  was  signed  by  Tobias 
Lear,  of  unhallowed  memory.  Although  nego- 
tiated at  the  cannon's  mouth  it  provided  that  the 
United  States  should  pay  a  ransom  of  sixty  thousand 

1  Our  diplomatic  relations  with  Tripoli  and  the  other  Barbary 
powers  are  traced  in  Lyman,  Diplomacy  of  the  United  States,  II.  xiii; 
the  various  treaties  and  other  original  material  are  here  printed. 
Gardner  W.  Allen,  in  Our  Navy  and  the  Barbary  Corsairs,  jiresents 
both  the  naval  and  diplomatic  phases  of  the  ciuestion.  Chapters  VI 
to  XV  cover  our  relations  with  Tripoli  during  this  period.  See 
also  Adams,  History  of  the  United  States,  II.  xviii;  McMaster, 
History  of  the  People,  III.  xviii;  Schouler,  History  of  the  United 
States,  II.  vi;  Hildreth,  History  of  the  United  States,  V  (Vol.  II; 
2d  series)  .xvii,  x\aii;  Channing,  The  Jcffersonian  System,  Ch.  III. 
Humphreys,  The  Life  of  David  Humphreys,  II.  ix-xi. 


158  THE    SENATE    AND    TREATIES 

dollars  for  the  crew  of  the  frigate  Philadelphia. 
Also  it  left  Eaton  and  Caramalli,  with  their  followers, 
to  shift  for  themselves  under  conditions  which  by 
many  were  thought  to  be  as  disgraceful  to  the 
United  States  as  they  were  disastrous  to  those  in- 
dividuals. The  treaty,  to  be  sure,  provided  that 
in  case  Caramalli  withdrew  from  Tripoh,  the  reign- 
ing Bashaw  should  return  to  him  his  wife  and  chil- 
dren, who  had  been  held  as  hostages.  But  the 
faithless  Lear  on  the  same  day  had  signed  an  agree- 
ment that  this  dehvery  need  not  be  made  for  four 
years.  Neither  the  other  Americans  on  the  ground 
nor  the  United  States  government  was  informed  of 
this  act.^ 

The  opposition  to  the  ratification  of  Lear's 
treaty  seems  to  have  rested  upon  three  grounds. 
The  first  two  concerned  the  treaty  itself:  It  was 
deemed  subversive  of  the  honor  and  interests  of 
the  United  States  for  it  to  buy  a  peace  when  it 
was  in  a  position  to  secure  one  by  force  of  arms; 
furthermore,  the  stipulation  that  the  wife  and 
children  of  Caramalli  be  returned  to  him  not  having 
been  fulfilled,  many  Senators  were  of  the  opinion 
that  until  they  were  the  treaty  should  not  be  rati- 
fied. If  John  Quincy  Adams  was  correct  in  his 
deductions,  ratification  was  also  opposed,  or  at 
least  its  delay  was  advocated,  because  "the  Mediter- 
ranean fund,  of  two  and  a  half  per  cent  additional 
duty,  was  by  the  terms  of  the  law  to  cease  three 
months  after  the  ratification  of  the  peace  with 
Tripoli."  - 

1  Sen.  Exec.  Jour.,  II.  38. 

*  Memoirs  of  John  Quincy  Adains,  I.  434. 


THE  TREATIES  OF  THOMAS  JEFFERSON    159 

A  study  of  the  proceedings  of  the  Senate  with 
reference  to  this  treaty  discloses  the  extent  to  which 
personal  feehng,  party  poUtics,  and  the  activities  of 
the  Senate  in  its  legislative  capacity  may  determine 
its  action  upon  treaties.     When  submitted,  Decem- 
ber 11,   1805,  the  treaty  was  referred  to  Smith  of 
Maryland.  Tracy  of  Connecticut,  and  Worthington 
of  Ohio,  who  considered  it  a  week  and  then  reported 
a  resolution  of  advice  and  consent  to  ratification. ^ 
A  few  days  later  Tracy,  the  minority  member  of 
the   committee,    submitted   a  resolution   which   re- 
flected   the    feelings    of    those    senators    who    were 
dissatisfied    with    the    management    of    the    entire 
matter.     This  resolution,  which  with  slight  altera- 
tions was  adopted  three  days  later,   is  quoted  as 
introduced  both  because  it  indicates  the  nature  of 
the  opposition  to  the  ratification  of  this  treaty  and 
because  it  is  an  excellent  example  of  the  wide  range 
of  information  which  the  Senate  has  always  felt  it 
proper  to  demand  from  the  executive: 

Resolved,  That  the  President  of  the  United  States  be, 
and  he  is  hereby,  requested  to  cause  to  be  laid  before 
the  Senate,  the  instructions  which  were  given  to  Mr. 
Lear,  the  Consul  General  at  Algiers,  respecting  the 
negotiations  for  the  treaty  with  the  Bey  and  Regenc\' 
of  Tripoli;  which  treaty  is  now  before  the  Senate  for 
their  consideration;  and,  also,  the  correspondence  of  the 
naval  commanders,  Barron  and  Rodgers.  and  of  Mv. 
Eaton,  late  Consul  at  Tunis,  respecting  the  progress  of 
the  war  with  Tiipoli,  antecedent  to  the  treaty,  and  re- 
specting the  negotiations  for  the  same;  and  whether  the 
wife  and  children  of  the  brother  of  the  reigning  Bashaw 
of  Tripoli,  have  been  delivered  up,  pursuant  to  the  stipu- 
lation in  said  treaty;  and  what  steps  have  been  taken  to 
1  Sen.  Exec.  Jour.,  II.  ;j,  4,  9. 


160  THE    SENATE    AND    TREATIES 

carry  the  said  stipulation  into  effect;  and  also,  to  lay- 
before  the  Senate  any  other  correspondence  and  informa- 
tion, which,  in  the  President's  opinion,  may  be  useful  to 
the  Senate,  in  their  deliberations  upon  said  treaty.^ 

After  a  delay  of  two  weeks  Jeflerson  responded 
to  the  general  demand  for  information  in  two 
messages  on  the  subject.  One  was  addressed  to 
both  Houses  of  Congress  and  was  an  explanation 
of  the  cooperation  of  the  United  States  and  Hamet 
Caramalli  against  Tripoli.  It  also  laid  before  the 
legislature  an  application  for  assistance  from  our 
former  ally,  or  shall  we  say  cooperator,  who  at 
this  time  was  finding  it  difficult  to  live  as  a  sovereign 
prince  upon  a  "pension  of  150  cents  per  day."  - 

The  other  message  was  to  the  Senate  in  its  ex- 
ecutive capacity,  and  stated  that  so  far  as  the 
papers  which  had  been  asked  for  were  available 
they  were  laid  before  it.^  The  reading  of  these 
papers  consumed  the  remainder  of  the  session  and 
occupied  three  hours  on  the  day  following.^  After 
debate  covering  two  days,  on  motion  of  Bradley  of 
Vermont,  both  messages  were  referred  to  a  select 
committee  composed  of  Bradley,  Wright,  Baldwin 
of  Georgia,  Smith  of  Maryland,  and  Tracy  of  Con- 
necticut. Of  these  Tracy  was  the  only  Federalist, 
while  Bradley,  Smith,  and  Baldwin  were  among  the 
leaders  of  the  Republicans  in  the  Senate."^ 

1  Sen.  Exec.  Jour.,  II.  12. 

2  Caramalli's  petition  to  the  people  of  the  United  States,  in 
Lyman,  Diploviacy  of  the  United  Stales,  II.  391,  n.;  Annals  of  Con- 
gress, 180.5-1806,  pp.  48-50. 

3  Sen.  Exec.  Jour.,  II.  14. 

■•  Memoirs  of  John  Quinaj  Adams,  I.  382-383. 
6  Sen.  Exec.  Jour.,  II.  14-15. 


THE  TREATIES  OF  THOMAS  JEFFERSON     K)! 

If  the  actions  of  a  body  of  men  are  any  index  to 
their  sentiments,  it  is  fairly  evident  that  this  com- 
mittee doubted  the  sincerity  of  Jefferson's  state- 
ment that  he  had  laid  before  the  Senate  all  papers 
which  could  assist  them  in  passing  judgment  on 
the  treaty  and  the  claims  of  Caramalli.  For  on 
the  twentieth  they  secured  the  passage  of  a  resolu- 
tion requesting  him  to  transmit  copies  of  eight  par- 
ticular documents,  which  they  described  in  great 
detail.'  Two  weeks  later  the  desired  papers,  or 
extracts  therefrom,  were  submitted  with  a  state- 
ment that  the  latter  contained  everything  relating 
to  the  case  of  Caramalli  to  be  found  in  the  original 
documents. - 

After  this  the  treaty  was  discussed  upon  several 
occasions,  but  no  further  action  was  taken  until 
Bradley  of  the  committee  brought  in  a  resolution 
to  postpone  further  consideration  until  next  session; 
to  request  the  President  in  the  meantime  to  as- 
certain whether  the  wife  and  children  of  Hamet 
Bashaw  had  been  delivered  up  to  him,  and  if  not, 
why  not;  and  to  cause  this  information  to  be  laid 
before  the  Senate.  The  motion  for  this  resolution 
was  ordered  to  lie  for  consideration.^ 

In  the  meantime  this  same  committee  had  been 
carefully  considering  the  application  of  the  aban- 
doned cooperator.  Three  days  later  Bradley  pre- 
sented a  report   and  a  bill  on  the  subject.'     The 

1  Sen.  Exec.  Jour.,  II.,  17.         -  Ibid.,  p.  20.         ^  Ibid,  p.  28. 

*  Of  the  reiiort  Pickering  wrote  to  Rufus  Kinp  as  follows:  "It  is 
drawn,  substantially  by  Bradley,  and  agreed  to  by  all  of  the  coni- 
tee.  (As  Tracy  tells  me)  except  Baldwin."  Pickering  to  King, 
March  21,  1806.     Life  and  Correspondcun  of  liiifns  Kin(i,  l\.  .i05. 


162  THE    SENATE    AND    TREATIES 

report  outlined  the  dealings  of  the  American  diplo- 
matic and  naval  officials  with  Caramalli,  presented 
his  case  as  that  of  a  much  injured  individual,  and 
laid  the  burden  of  blame  for  the  whole  affair  upon 
Tobias  Lear.^  The  bill  provided  for  substantial 
relief  for  the  injured  ex-Bashaw. 

The  bill  came  up  for  third  reading  on  March  31.- 
During  the  several  days  of  debate  which  followed. 
Adams  bore  the  chief  burden  of  battle  in  opposition 
to  the  bill  and  to  the  report  of  the  committee. 
The  objection  seems  to  have  been  not  so  much  to 
an  appropriation  for  the  relief  of  Caramalli  as 
against  the  report  which  based  his  claim  upon 
right  and  justice,  and  not  upon  the  liberality  and 
magnanimity  of  the  United  States.  Adams  also 
defended  Lear  in  the  course  he  had  taken  in  con- 
cluding the  treaty.'^ 

1  Lear,  in  fact,  was  censured  both  for  abandoning  the  ex-Bashaw 
and  General  Eaton,  and  for  agreeing  to  pay  $60,000  for  the  American 
prisoners.  The  report  severely  criticized  his  course  from  beginning 
to  end,  and  probably  expressed  with  fair  accuracy  the  disgust  of 
a  considerable  number  of  Senators  with  the  treaty  and  the  method 
of  its  negotiation.     Annnls  of  Congress,  1805-1806,  pp.  185-188. 

2  Ibid.,  p.  210. 

'  Of  his  speech  of  April  1  against  the  l)ill  Adams  wrote,  "The 
Invalid  bill  passed  as  amended  by  the  committee  of  the  Senate, 
with  some  little  debate.  I  was  unable  to  give  it  proper  attention, 
being  employed  in  preparing  to  meet  the  bill  in  favor  of  Hamet 
Caramalli.  This  was  taken  up  soon  after  twelve  o'clock.  Mr. 
Bradley,  the  chairman  of  the  committee  which  reported  the  bill, 
made  a  speech  of  about  an  hour  and  a  half  in  support  of  the  report 
accompanying  the  bill  and  in  answer  to  my  yesterday's  objections 
and  those  of  Mr.  Baldwin.  I  replied  in  a  speech  of  about  the  same 
length,  and  endeavored  to  prove,  by  recurrence  to  the  documents, 
that  the  report  was  erroneous  in  all  its  parts."  Memoirs  of  John 
Qvincy  Adams,  I.  425.  This  speech  was  reported  in  Annals  of 
Congress,    1805-180(;,    i)p.   211-224.     On   April   2    Adams   recorded 


THE    TREATIES    OF    THOMAS   JEFFERSON  163 

Adams  and  Sumter  and  those  of  their  way  of 
thinking  seem  to  have  had  the  better  of  the  debate, 
for  Sumter's  motion  to  recommit  the  bill,  report, 
and  documents  prevailed  against  stern  opposition. 
The  vote  was  14  to  15,  with  four  of  the  six  Federalists 
present  among  those  who  supported  Bradley  and 
his  committee.^  A  question  then  arose  whether  the 
reference  was  to  the  same  committee  or  to  a  new  one. 
The  decision  of  the  Senate  was  a  final  blow  to  the 
pride  of  Bradley  and  his  friends,  and  apparently  a 
source  of  considerable  satisfaction  to  Adams,  who 
that  night  made  the  following  entry  in  his  diary: 

It  was  finally  referred  to  the  same  [committee],  with 
the  addition  of  two  new  members  —  General  Sumter 
and  myself.     S.  Smith,  who  was  on  the  former  committee, 

in  his  diary,  "about  one  the  bill  ni  favor  of  Hamet  Caranialli  was 
again  taken  up,  and  Mr.  Wright,  in  a  speech  of  more  than  two 
hours,  repHed  to  my  yesterday's  objections.  He  abandoned, 
however,  almost  the  whole  ground  taken  by  the  committee,  and 
placed  the  claim  upon  a  foundation  altogether  different.  Mr. 
Bradley  began  to  propose  amendments  to  his  own  bill.  General 
Sumter  opposed  them,  on  the  ground  that  the  bill  was  connected 
with  the  report,  which  he  dimpprored  in  (dl  its  parts.  Senate 
adjourned  without  a  decision.  Mr.  Baldwin  and  Mr.  Sumter  came 
to  me  after  adjournment,  and  consulted  with  me  how  we  could 
dismiss  the  bill  so  as  to  show  our  dissent  from  the  report  and  yet 
do  something  for  the  Tripolitan  ex-Bashaw  who,  as  all  agree,  has 
some  claim  ujron  our  generosity.  By  agreement  with  them  I  agreed 
to  call  on  Mr.  Madison,  who,  from  his  knowledge  of  all  the  circum- 
stances, might  suggest  something  which  we  may  adopt.  I  called 
on  him  accordingly  this  evening,  and  he  ajipeared  to  be  well  pleased 
that  something  temporary,  like  what  General  Sumter  has  sug- 
gested, should  be  agreed  to.  He  expressed  himself  with  his  usual 
caution,  but  with  disapprobation  of  the  report.  ..."  Memoirs 
of  John  Quincy  Adams,  I.  426. 

I  Annals    of   Congreso,    1805-1^00,    p.    '22.5.     Memoirs    of   John 
Qnincy  Adams,  I.  427. 


164  THE    SENATE   AND   TREATIES 

offered  to  excuse  himself,  being  now  President  pro  tern.; 
but  Mr.  Tracy,  complaining  that  the  feelings  of  the 
committee  had  been  injured,  urged  Smith  not  to  excuse 
himself.     So  that  he  agreed  still  to  serve. ^ 

The  addition  of  these  two  gentlemen  could  hardly 
be  expected  to  increase  the  harmony  of  the  com- 
mittee. Sessions  were  held  oil  the  fifth,  the  seventh 
and  the  ninth  of  April,  and  according  to  Adams's 
descriptions  were  marked  by  violence  of  language 
and  bitterness  of  feeling.  All  of  the  members  of 
the  old  committee  but  Wright  are  reported  to  have 
become  extremely  anxious  to  postpone  the  whole 
matter  until  the  next  session.  Adams  and  his 
followers  desired  to  withdraw  both  the  bill  and  the 
report  and  to  make  mere  temporary  provision  for 
Caramalli.  When  Adams  was  not  in  the  Senate, 
or  meeting  with  the  committee,  he  seems  to  have 
been  interviewing  naval  officers,  or  looking  up 
records  for  evidence  to  support  his  contentions. 
But  even  John  Quincy  Adams  did  not  have  the 
gift  of  omnipresence,  and  on  the  ninth,  while  he  was 
at  the  auditor's  office  examining  the  state  of  Mr. 
Eaton's  accounts  Bradley  hurried  through  the  Senate 
a  resolution  which  postponed  further  consideration 
of  the  bill  and  the  report  until  the  first  Monday  of 
the  following  December.- 

1  Memx/irs  of  John  Quincy  Adams,  I.  427-428. 

2  Adams's  explanation  of  how  the  accident  occurred  is  worth 
reading.  The  entry  for  April  9  begins,  "I  called  again  this  morning 
at  the  Auditor's  office,  to  examine  the  state  of  Mr.  Eaton's  accounts, 
and  obtained  part  of  the  information  I  want.  This,  however, 
delayed  me  so  that  I  could  not  attend  the  committee  on  the  bill  in 
favor  of  Hamet  Caramalli.  I  got  to  the  Capitol  about  twenty 
minutes   after  the  hour  at  which  the  Senate  meets  and  found  that 


THE   TREATIES   OF   THOMAS   JEFFERSON  165 

In  the  midst  of  this  bitter  fight  in  legislative 
sessions  over  the  report  on  the  negotiation  and  the 
treaty,  and  the  bill  for  C'aranialli's  relief,  the  treaty 
itself  was  brought  up  again  for  consideration  by  the 
Senate  in  its  executive  capacity.  It  will  be  re- 
membered that  on  IMarch  14,  three  days  before  the 
introduction  of  the  report  on  the  claims  of  C'ara- 
malli,  Bradley  had  introduced  a  resolution  to 
postpone  consideration  of  the  treaty  until  the  next 
session,  and  for  other  purposes.  On  April  7  con- 
sideration of  this  resolution  was  resumed.^  As 
might  be  expected  the  proponents  of  the  report 
were  the  opponents  of  the  treaty.  At  this  point 
appears  the  third  ground  for  opposition  to  im- 
mediate ratification,  for  Adams  reports  Bradley  to 
have  finally  made  "the  avowal  that  the  two  and  a 
half  per  cent  additional  duty,  which  by  law  must 
cease  three  months  after  the  proclamation  of  peace, 
is  wanted  for  other  purposes,  and  is  a  further  in- 
ducement to  postpone."  - 

On  the  following  day  the  resolution  to  postpone 
was  rejected,  twenty  to  ten,  "after  a  long  and 
animated  debate."  Tracy  and  ^Yright  were  the 
only  members  of  the  committee  who  voted  with 
Bradley  on  this  question.^  And  yet  Adams,  al- 
ways suspicious,  still  expected  that  the  matter 
would  be  postponed.     That  night  he  wrote: 

the  committee  had  taken  advantage  of  my  absence  to  report  a 
postponement  of  the  subject  until  the  next  session,  which  the 
Senate  had  agreed  to."  Memoirs  of  John  Quincy  Adaivs,  I.  432. 
Also  Annals  of  Congress,  1H05-1S06,  p.  231. 

1  Sen.  Exec.  Jour.,  II.  31. 

-  Memoirs  of  John  Quincy  Adams,  I.  431. 

3  Ibid;  Sen.  Exec.  Jour.,  II.  31. 


166  THE    SENATE    AND    TREATIES 

Yet  from  the  complexion  of  the  votes,  I  think  it  will 
end  in  that.  The  Presidential  votes  were  for  postpone- 
ment. I  mean  by  this,  the  men  who  get  in  whispers 
his  secret  wishes,  and  vote  accordingly.  Hence  I  con- 
clude the  Treaty  shall  not  be  ratified.  And  the  true 
reason  is  to  avoid  the  discontinuance  of  the  two  and  a 
half  per  cent.^ 

Bradley's  resources,  indeed,  had  not  been  ex- 
hausted with  the  defeat  of  his  motion  to  postpone. 
Its  rejection  was  followed  by  an  unsuccessful  at- 
tempt to  make  ratification  contingent  upon  the  de- 
livery of  the  ex-Bashaw  in  accordance  with  the 
third  article  of  the  treaty.^  On  the  twelfth,  how- 
ever, the  proposed  amendment  was  voted  down, 
and  in  the  face  of  opposition  at  every  step  the 
resolution  to  advise  and  consent  to  the  ratification 
of  the  treaty  as  signed  was  passed,  21  to  8.^ 

Adams's  final  comments  on  the  proceedings  reveal 
the  tenseness  of  the  struggle.     He  wrote: 

Precisely  at  twelve  I  moved  to  go  upon  executive 
business,  and  the  Treaty  with  Tripoli  was  taken  up. 
Mr.  Bradley,  who  had  obtained  leave  of  absence  after 
Monday  next,  went  away  last  night.  Mr.  Wright's 
amendment,  to  make  the  ratification  conditional  on  the 
delivery  of  Hamet's  wife  and  children,  was  first  del)ated, 
and  rejected,  twenty  to  nine.  Mr.  Smith  of  Ohio  then 
moved  a  postponement  to  the  first  Tuesday  in  December 
next;  and  just  at  six  o'clock  p.m.  the  ciuestion  on  the 
ratification  was  taken  and  passed  —  twenty-one  to  eigiit. 
The  debate  was  very  warm,  zealous  and  vehement  — 
General  Sumter  and  myself  in  favor  of  the  ratification; 
Messrs.  Wright,  Adair,  White,  Smith  of  Ohio,  Tracy, 
and  Pickeiing  against  it.     The  speeches  of  these  gentle- 

'  Memoirfi  of  John  Quiucy  Admns,  I.  431. 

2  Sen.  Exec.  Jour.,  II.  31.  '  IbkJ.,  pp.  31-32. 


THE    TREATIES   OF   THOMAS   JEFFERSON  167 

men,  except iii^  Smith  and  Tracy,  were  as  much  at  rne  as 
to  the  questions  in  discussion;  to  Mr.  Tracy  and  Mr. 
Pickering  I  made  no  reply.  It  was  seven  in  the  evening 
before  I  got  honie.^ 

On  the  nineteenth  Adams  again  expressed  his  con- 
viction that  the  desire  to  continue  in  operation  the 
law  providing  for  the  "Mediterranean  fund"  was 
the  real  reason  for  the  opposition  to  ratification. 
He  wrote, 

The  Mediterranean  fund,  or  two  and  a  half  per  cent, 
additional  duty,  was  by  the  terms  of  the  law  to  cease 
three  months  after  the  ratification  of  the  peace  with 
Tripoli.  This  was  the  principal  real  obstacle  to  the  rat- 
fication,  but  did  not  eventually  prevail.  We  advised 
the  ratification  last  Saturda3\- 

There  seems  to  be  no  additional  evidence  to  show 
that  Adams  w^as  justified  in  his  belief  that  the 
desire  to  continue  this  augmented  duty  was  at  the 
bottom  of  the  opposition  to  the  treaty.  Certainly 
it  is  hard  to  beheve  that  Jefferson  was  secretly  in- 
triguing for  its  defeat.  The  sixty  thousand  dollars 
had  been  paid;  the  American  fleet  in  the  Mediter- 
ranean had  been  greatly  reduced  and  the  failure 
of  the  treaty  almost  certainly  would  have  caused 
the  administration  much  additional  expense  and 
anxiety  at  a  time  when  all  of  its  energy  and  re- 
sources were  needed  in  other  directions;  Jefferson 
was  the  last  man  to  fight  any  one  on  a  question  of 
national  "honor"  and  would  have  preferred  to  have 
had  his  navy  "hauled  up"  than  on  the  high  seas. 
But  whether  Adams  was  totally  or  only  partially 
wrong  in  his  surmises  there  seems  to  be  little  ques- 

'  Memoirs  of  John  Quincy  Adams,  I.  433.  ^  Ibid.,  p.  435. 


168  THE    SENATE    AND    TREATIES 

tion  that  the  treaty  owed  its  ratification  in  large 
part  to  his  activitj^  —  a  fact  which  did  not  improve 
the  already  strained  relations  between  him  and  his 
party.  After  the  ratification  of  the  treaty  Adams 
brought  in  a  bill  for  the  temporary  relief  of  Hamet 
Caramalli  which  passed  before  the  end  of  the 
session.^ 

The  Tripolitan  treatj^  of  1805  was  the  last  treaty 
tp  be  considered  by  the  Senate  for  a  period  of 
almost  ten  years.  It  has  been  deemed  worth  while 
to  trace  in  detail  the  action  of  the  Senate  upon  it 
because  it  illustrates  the  operation  of  the  treaty- 
making  power  of  the  Senate  as  it  was  then  exercised, 
and  because  it  also  gives  some  idea  of  the  complex 
forces  that  work  for  or  against  even  the  most  simple 
treaty  when  it  is  before  the  upper  house. 

1  Ajinals  of  Congress,  1805-1806,  pp.  242,  244,  246,  1106. 


CHAPTER   VIII 

The  Genesis  of  the  Senate  Committee 
ON  Foreign  Relations 

Between  December,  1805,  and  February,  1815, 
no  treaty  was  laid  before  the  United  States  Senate 
for  its  constitutional  action.  Yet  there  are  few 
periods  in  the  history  of  this  country  during  which 
its  relations  with  the  governments  of  Europe  played 
a  greater  part  in  the  political,  social,  and  economic 
hfe  of  the  people,  or  exercised  a  more  potent  in- 
fluence on  the  destiny  of  the  nation.  For  ten  years 
preceding  the  Treaty  of  Ghent,  at  every  session  of 
Congress  a  large  proportion  of  the  most  important 
business  transacted  had  to  do  with  French  decrees 
and  British  orders  in  council,  with  impressment, 
with  Spanish  aggressions  on  the  southern  border 
with  the  Barbary  corsairs,  with  embargoes,  with  en- 
forcement acts,  with  the  privileges  of  foreign  min- 
isters, with  the  maintenance  of  neutrality,  with 
wars  and  rumors  of  wars.  Domestic  politics  turned 
on  foreign  issues;  the  greatest  men  in  both  parties 
gave  to  foreign  affairs  their  first  thought  and  their 
gravest  attention.  It  was  during  this  decade,  as 
crowded  with  diplomatic  strivings  and  international 
activity  as  it  was  devoid  of  international  agree- 
ments, that  the  Committee  on  Foreign  Relations  of 
the  United  States  Senate  came  into  being. 

169 


170  THE    SENATE    AND    TREATIES 

The  antecedents  of  the  committee,  however, 
must  be  sought  in  the  records  of  the  earhest  years 
of  government  under  the  Constitution.^  The  prac- 
tice of  referring  the  business  of  treaty-making  to 
select  committees  began  with  the  reception  of  the 
first  Presidential  message  on  the  subject.  During 
Washington's  administrations,  however,  there  was 
no  standing  rule  providing  for  such  reference,  and 
committees  were  used  when  and  as  the  Senate  saw 
fit  —  as  the  convenience  of  the  moment  dictated. 
But  even  in  these  circumstances  there  appears  to 
have  been  a  strong  tendency  to  concentrate  re- 
sponsibility in  treaty  affairs  in  the  hands  of  a  few 
men.  During  the  first  eight  years  of  the  govern- 
ment eighteen  treaties  with  Indian  tribes  and 
foreign  nations  -  were  submitted  to  the  Senate  for 
its  advice  and  consent  to  ratification,  and  its  advice 
was  sought  in  the  interpretation  of  one  other  treaty. 
In  the  consideration  of  these  nineteen  treaties  the 
Senate    employed    nineteen    committees,    to    which 

1  McConachie,  Congressional  Committees,  A  Study  of  the  Origins 
and  Development  of  our  National  and  Local  Legislative  Methods, 
devotes  Chapters  VIII  and  IX  to  the  committee  system  of  the 
Senate.  The  first  of  these  discusses  sectionahsm  as  it  has  been 
manifested  in  the  committee,  the  several  methods  by  which  com- 
mittees have  been  chosen,  and  the  relation  of  the  system  to  political 
parties.  The  second,  entitled  "Interior  Organization,"  treats  of 
procedure,  majority  and  minority  representation,  the  organization 
of  the  committees  themselves  and  their  relation  to  the  business  of 
the  Senate.  Very  little  attempt  is  made  to  trace  historically  the 
rise  of  the  committee  system  or  of  any  one  committee.  Harlow, 
The  History  of  Legislative  Methods  for  the  Period  Before  1825,  Chs.  XII. 
and  XIII.  traces  the  development  of  the  Standing  Committees  of 
the  House  of  Representatives. 

2  This  includes  additional  articles  ui)on  which  the  Senate  took 
separate  action. 


SENATE   COMMITTEE    ON    FOREIGN    RELATIONS       171 

were   referred  questions  connected  with   the   nego- 
tiation, ratification,  or  interpretation  of  eleven  dif- 
ferent   treaties.     The    total    membership    of    these 
nineteen  committees  was  sixty-eight,  while  sixty-six 
individuals  served  in  the  Senate  during  these  years. 
Yet  these  sixty-eight  committee  places  were  filled 
by  just  twenty-four  Senators;    that  is,   two  more 
than  a  third  of  the  Senate  membership  did  all  of 
the  committee  work  on  foreign  and  Indian  treaties. 
Nor  do  these  figures  tell  the  whole  story  of  speciali- 
zation and  concentration  of  power  in  this  field.    Of 
the  twenty-four  Senators  who  served  on  these  com- 
mittees, five  held  more  than  half  of  the  sixty-eight 
places.     These  five  were  the  most  powerful  Federal- 
ist   members  of   the  upper  house.      Caleb   Strong 
served  on  nine  committees,  Robert  ^Morris  on  eight, 
Rufus   King  and  Oliver  Ellsworth  on  seven  each, 
and  George  Cabot  on  four.     Nor  is  the  situation 
altered   when   only   those   committees   which   acted 
upon  treaties  with  foreign  nations  are  considered. 
There  were  ten   such   committees,  whose  member- 
ship totaled  forty-two,  and  upon  which  sixteen  dif- 
ferent    individuals     served.     The     five     Federalist 
friends    whose    names    have    been    mentioned    held 
twenty-six  of  these  forty-two  places.     In  addition 
they  were  primarily  responsible  for  the  Jay  Treaty 
from  the  conception  of  the  idea  to  the  ratification 
of  the  completed  instrument  —  and  this  despite  the 
fact  that  the  Senate  appointed  no  committee  on 
this  matter. 

These  facts  would  seem  to  lead  to  the  conclusion 
that  during  Washington's  administrations  there  was 
a  comparatively  small  group  of  members  to  whom 


172  THE    SENATE    AND    TREATIES 

the  Senate  regularly  intrusted  a  large  part  of  the 
work  which  devolved  upon  it  in  the  performance  of 
its  treaty-making  functions,  and  to  whom  it  habitu- 
ally looked  for  guidance  in  this  field.  It  is  evident, 
however,  that  it  did  so  not  in  accordance  with  any 
rule  or  fixed  precedent,  perhaps  not  even  con- 
sciously, but  simply  because  this  was  the  easiest 
method  of  transacting  this  sort  of  business.  It 
was  only  through  succeeding  years  that  the  Senate 
established  a  standing  committee  which  assisted  it 
in  the  consideration  of  all  problems  of  foreign  af- 
fairs in  accordance  with  a  regular  procedure. 

In  further  tracing  the  development  of  this  com- 
mittee, attention  must  be  given  not  so  much  to 
the  activities  of  the  Senate  in  the  negotiation  and 
ratification  of  treaties,  as  to  the  manner  in  which 
the  upper  house  performed  its  more  genuinely 
legislative  functions.  During  the  first  twenty-five 
years  of  its  existence  it  considered  measures  having 
to  do  with  foreign  affairs  more  frequently  in  legis- 
lative than  in  executive  session.  And  it  is  an  in- 
teresting fact  that  the  Foreign  Relations  Committee, 
which  to-day  is  usually  thought  of  as  a  committee 
primarily  for  the  consideration  of  treaties,  really 
grew  directly  out  of  the  legislative  rather  than  the 
executive  activities  of  the  Senate.^ 

1  It  should  be  noted  that  during  the  whole  of  the  period  under 
consideration  Senate  committees  were  chosen  by  ballot,  a  plurality 
of  votes  electing.  In  December,  1805,  John  Quincy  Adams  ob- 
served, in  his  diary:  "As  our  committees  are  all  chosen  by  ballot 
the  influence  and  weight  of  a  member  can  very  well  be  measured 
by  the  number  and  importance  of  those  of  which  he  is  a  member." 
He  added,  "In  this  respect  I  have  no  excitements  of  vanity."  Mem- 
oirs of  Joint   (Juiiiri/  Adonin,    I.   'S'29. 


SENATE   COMMITTEE    ON    FOREIGN    RELATIONS       173 

As  has  been  indicated  in  the  case  of  treaties ,  in 
no  sense  was  there  a  standing  committee  to  which 
all  business  involving  foreign  relations  was  regularly 
referred.  In  many  instances  important  matters  of 
this  sort  were  acted  upon  by  the  Senate  without 
the  assistance  of  any  committee,  and  lengthy  and 
weighty  communications  from  the  Executive  ex- 
plaining the  labors  of  our  diplomatic  representatives 
abroad  frequently  were  read  and  discussed  on  the 
floor  without  any  suggestion  that  they  be  referred 
to  any  smaller  body  of  Senators.  Frequently 
select  committees  were  raised  to  consider  particular 
problems,  and  with  rare  exceptions  they  went  out 
of  existence  with  the  solution  of  those  problems. 
In  a  few  instances,  however,  such  a  committee 
might  be  continued  throughout  a  session,  either  be- 
cause the  business  referred  to  it  was  not  more  quickly 
concluded,  or  because  new  references  of  matters 
more  or  less  germane  to  the  original  subject  were 
made  to  it  from  time  to  time.  It  is  in  these  ex- 
ceptional instances  that  are  to  be  found  the  earliest 
steps  in  the  evolution  from  the  temporary,  select 
committee  on  some  specific  question,  to  the  standing 
committee  on  foreign  relations  to  which  all  business 
concerning  foreign  affairs  invariably  was  referred. 

The  first  committee  of  this  exceptional  character 
existed  during  the  third  session  of  the  first  Congress. 
In  his  annual  message,  delivered  December  8,  1790, 
Washington  called  the  attention  of  Congress  to 
the  distressed  condition  of  American  commerce  in 
the  Mediterranean,  and  recommended  that  measures 
be  devised  for  its  relief  and  protection.^     A  week 

1  A niiah  of  Congress,  17S9-1791,  II.  17:50. 


174  THE    SENATE   AND   TREATIES 

later  the  Senate  ordered  that  '^Messrs.  Langdon, 
Morris,  King,  Strong,  and  Ellsworth  be  a  committee 
to  consider  that  part  of  the  President's  speech  which 
refers  to  the  commerce  of  the  Mediterranean."  ^ 
The  form  of  this  order  is  worthy  of  note,  because 
it  was  in  this  manner  that  the  Senate  in  later  years 
raised  the  committees  which  developed  into  the 
Committee  on  Foreign  Relations.  In  fact,  the  entire 
standing  committee  system  of  the  Senate  grew  out 
of  the  reference  of  particular  parts  of  the  annual 
messages  to  select  committees.  This  practice,  how- 
ever, did  not  become  general  until  after  1797. 

The  particular  committee  here  under  discussion 
continued  in  active  existence  throughout  the  session, 
and  possessed  a  greater  number  of  the  character- 
istics of  the  later  standing  committees  than  did  any 
committee  raised  for  ten  years  afterwards.  To  it 
was  entrusted  all  of  the  business  concerning  Ameri- 
can captives  in  Algiers,  the  protection  of  American 
trade  in  the  Mediterranean,  and  our  commercial 
treaty  with  Morocco.-  Each  matter  was  referred  as 
it  arose,  and  the  Senate  usually  named  the  com- 
mittee as  that  ''appointed  on  the  15th  day  of 
December  to  consider  that  part  of  the  President's 
Speech  which  relates  to  the  commerce  of  the 
Mediterranean." 

At  the  beginning  of  the  next  session  of  Congress 
six  committees  were  appointed  to  consider  particular 
matters  of  business  mentioned  in  the  President's 

^  A7mals  of  Congress,  1789-1791,  p.  1735. 

-  /6id.,  pp.  1740-1741;  1744,  1749,  1753,  1763,  1773-1776; 
Compilation  of  liiporls,  Sen.  Corn.  For.  Rels.,  IV.,  5-6;  Sen.  Exec. 
Jour.,  1.  72,  78. 


SENATE   COMMITTEE    ON    FOREIGN   RELATIONS       17-5 

address,  l)ut  with  the  possible  exception  of  one  on 
consuls  and  vice-consuls,  none  of  these  had  to  do 
with  treaties  or  foreign  relations. ^  Shortly  after- 
wards, however,  a  petition  asking  that  Congress 
reimburse  private  individuals  who  had  ransomed  an 
American  captive  at  Algiers  was  referred  to  a  com- 
mittee with  the  same  personnel  as  the  Algerine 
committee  of  the  preceding  session,  except  that 
Butler  was  substituted  for  Ellsworth.  During  the 
remainder  of  the  session  all  business  pertaining  to 
Algiers  was  referred  to  this  group.'-  At  the  same 
time,  however,  other  matters  concerning  our  re- 
lations with  foreign  nations  were  referred  to  other 
select  committees,  so  that  in  neither  session  did 
there  exist  a  body  w^hich  with  any  degree  of  accuracy 
could  be  called  a  committee  on  foreign  relations. 

The  non-existence  during  this  period  of  any  such 
committee  may  be  admirably  illustrated  by  a  re- 
currence to  the  proceedings  of  the  Senate  during 
the  first  session  of  the  third  Congress.  During  this 
session  of  1793-1794  the  situation  was  tense  between 
the  United  States  and  France,  England,  and  Spain, 
and  much  of  the  time  of  Congress  was  occupied 
with  foreign  affairs.  On  December  5,  1793,  Wash- 
ington communicated  a  message  with  a  great  mass 
of  papers  upon  French-British-American  relations. 
These  were  soon  followed  by  a  similar  communica- 
tion upon  Spanish  affairs.  On  January  15  addi- 
tional papers  revealing  the  situation  between  the 
United  States  and  France  were  sent  in,  and  on  the 

1  Annals  of  Conffress,  1791-1793,  pp.  24-25. 

^  Ibid.,  pp.  26,  29,  41;  Cojnpilation  of  Reports,  Sen.  Com.  For. 
Rels.,  VIII.  (5;   Sen.  Exec.  Jour.,  I.  91. 


176  THE    SENATE   AND   TREATIES 

day  following  a  message  with  further  documents 
touching  the  same  subject.  A  week  later  extensive 
extracts  from  the  dispatches  of  our  minister  at 
London  were  given  to  Congress,  and  on  the  next  day 
the  Senate  passed  a  resolution  requesting  Wash- 
ington to  lay  before  it  the  correspondence  of  our 
minister  at  Paris  with  the  French  Government  and 
with  the  Department  of  State.  During  February, 
March,  and  April  other  communications  on  foreign 
relations  were  received  from  the  President.  Yet  not 
one  of  these  messages  was  referred  to  a  committee, 
and  during  the  entire  session  only  two  committees 
were  raised  that  had  anything  to  do  with  foreign 
affairs.^ 

During  the  administration  of  John  Adams  little 
conscious  progress  was  made  in  the  development  of 
a  standing  committee  on  foreign  relations.  Pos- 
sibly for  the  very  reason  that  during  these  years 
the  attitude  of  the  United  States  toward  France, 
England,  and  Spain  was  the  paramount,  or  at  least 
the  most  spectacular  issue  of  national  politics,  the 
Senate  preferred  to  act  directly  in  foreign  affairs. 
The  nearest  approach  to  a  foreign  relations  com- 
mittee was  made  during  the  long  and  momentous 
session  which  began  on  November  13,  1797.  At 
the  opening  of  the  special  session  of  the  preceding 
summer  Adams  had  recommended  the  strengthen- 
ing of  the  navy  as  a  measure  of  precaution  against 
further  trouble  with  France.-     In  his  first  annual 

'  Annols  of  Congress,  179.3-1795,  pp.  14-1.5,  19,  SI,  82,  37,  38,  55, 
56,  62,  80;  Am.  State  Papers,  For.  lieh.,  1.  141-243,  247-288,  309- 
311,  312-314,  31.5-323. 

2  Richardson,  Messages,  I.  233-239. 


SENATE    COMMITTEE    ON    FOREIGN    RELATIONS       177 

address  he  again  urged  that  every  exertion  should 
be  made  for  the  protection  of  our  commerce  —  and 
that  the  country  should  be  placed  in  a  suitable 
posture  of  defense.^  Two  weeks  later  the  Senate 
ordered  that  "Messrs.  Goodhue,  Laurance,  Tracy, 
Bingham,  and  Gunn,  be  a  committee  to  take  into 
consideration  that  part  of  the  President's  speech, 
which  recommends  some  measures  being  adopted 
for  the  security  and  protection  of  the  commerce 
of  the  United  States;  and  to  report  thereon  by  bill 
or  otherwise."  -  During  the  seven  months  of  this 
session  scarcely  a  day  passed  that  these  five  men  were 
not  engaged  in  considering  one  or  more  measures 
having  to  do  with,  or  arising  out  of  our  relations 
with  France.  Almost  all  of  the  measures  of  de- 
fense and  offense  that  arose  out  of  the  French 
quarrel  either  originated  with  them  or  passed  through 
their  hands.  To  this  committee  was  referred  the 
message  in  which  the  President  set  forth  the  flagrant 
violations  of  American  neutrality  by  the  French 
privateer  Veriilude,  after  that  vessel  had  sunk  a 
British  merchantman  in  Charleston  harbor.  They 
received  for  consideration  Adams's  pessimistic  com- 
munication of  March  19  —  which  declared  that 
there  was  small  chance  of  our  envoys  accomphsh- 
ing  the  objects  of  their  mission,  and  recommended 
energetic  measures  of  defense.  In  this  committee 
originated  the  bills  by  which  the  Senate  proposed 
to  cope  with  the  situation,  and  to  them  were  re- 
ferred also  those  measures  which  were  sent  up  from 
the  House.     On  June  21,  1798,  they  presented  the 

1  Richardson,  Messages,  I.  '2.50-2o4. 
*  Annals  of  Congress,   1 797-1 7y9,[l.  475. 


178         THE  SENATE  AND  TREATIES 

bill  declaring  the  French  treaties  to  be  void  and  of 
no  effect.  All  told,  they  reported  eight  Senate  bills 
and  received  for  consideration  seven  House  bills 
concerning  measures  affecting  our  relations  with 
France,  each  of  which  they  piloted  through  its 
course  in  the  Senate.  In  addition,  they  reported 
one  resolution  and  considered  two  Presidential  mes- 
sages which  were  referred  to  them.^ 

Yet  despite  this  activity,  a  careful  study  of  the 
proceedings  of  the  session  reveals  how  far  this  group 
was  from  being  a  committee  on  foreign  relations,  or 
even  on  French  affairs.  It  also  demonstrates  con- 
clusively that  at  this  time  no  such  committee  existed, 
or  was  considered  to  exist.  Of  the  eight  messages 
with  which  Adams  laid  before  Congress  the  cor- 
respondence of  our  unfortunate  envoys  to  France, 
and  other  documents  of  like  nature,  only  two  were 
referred  to  this  committee.  The  other  six  were 
considered  by  the  Senate  as  a  whole,  and  not  one 
of  them  was  given  to  any  committee.  In  most  cases 
the  message  and  accompanying  documents  were 
ordered  to  be  printed,  and  then  were  acted  upon 
directly  by  the  Senate  as  it  saw  fit.'- 

It  was  almost  at  the  end  of  Jefferson's  second  ad- 
ministration, during  the  memorable  special  session 
of  1807-1808,  that  the  natural  tendency  of  the 
Senate  to  follow  the  lead  of  a  relatively  small  group 
of  men  in  the  transaction  of  a  particular  sort  of 

1  Annals  of  Congress,  1797-1799,  I.  497-498,  505-506,  523-525, 
529,  540,  542-543,  548,  571-573,  585-58(5,  590-591.  597,  604.  »'09; 
Am.  Slate  Papers,  For.  liels.,  II.  116-119,  152. 

2  Annals  of  Congress,  1797-1799,  I.  516,  517,  .5.55.  571.  581.  58r>- 
586;  Am.  State  Paper..,  For.  Pels.,  II.  150-151,  153-163,  169-182, 
185-188,  188-199,  199-201. 


SENATE   COMMITTEE    ON    FOREIGN    RELATIONS       171) 

business  gave  rise  to  a  real,  although  not  a  recognized 
standing  committee  on  foreign  relations.  During 
the  session  the  following  matters,  dealing  directly 
with  British  relations  or  with  measures  made  neces- 
sary by  them,  were  either  referred  to  or  reported 
from  select  committees:  so  much  of  the  annual 
message  as  related  to  the  recent  outrages  of  British 
armed  vessels  within  the  jurisdiction  of  the  United 
States,  and  to  the  legislative  provisions  which  might 
be  expedient  as  resulting  from  them;  Jefferson's 
embargo  message;  the  embargo  bill;  the  enforce- 
ment act,  sent  up  from  the  House;  the  House  bill 
to  continue  the  act  to  protect  American  commerce 
and  seamen  from  the  Barbary  Powers;  Jefferson's 
message  submitting  the  British  orders  in  council 
of  November  11,  1807;  the  supplemental  non- 
importation act  from  the  House;  a  plan  from  the 
President  for  an  increase  in  the  army;  the  House 
bill  supplementary  to  the  embargo;  the  message 
submitting  the  papers  concerning  the  Leopard- 
Chesapeake  affair;  the  ]\Ionroe-Pinckney  negotia- 
tion, and  the  correspondence  upon  the  subject  of 
the  rejected  treaty,  and  all  of  the  correspondence 
with  reference  to  the  negotiations  with  France; 
the  bill  authorizing  the  President  to  suspend  the 
embargo  under  certain  conditions;  a  report  re- 
viewing the  condition  of  our  foreign  relations  and 
recommending  a  continuance  of  the  existing  policy; 
a  supplementary  embargo  bill;  and,  finally,  House 
amendments  to  this  bill.^ 
An  examination  of  these  measures  at  once  dis- 

1  Annals  of  Congress,  1807-1808,  I.  19,  34,  .50-53,  63-ti4,  78.  79, 
104,  127,  1.51.  1.53,  173-174,  178,  186,  301-371,  378. 


180  THE    SENATE   AND   TREATIES 

closes  a  certain  unity  in  all  of  them;  all  are  directed 
to  a  common  purpose.  It  might  be  expected,  then, 
that  they  would  have  been  referred  to  one  standing 
committee  —  say  upon  British  relations  and  national 
defense.  Or,  they  might  have  been  divided  into 
two  groups,  one  including  those  bearing  directly 
on  British  relations,  and  the  other  those  having 
to  do  with  measures  of  defense.  As  has  been  said, 
however,  each  was  referred  to  a  select  committee 
raised  on  that  one  subject.  But,  and  here  is  the 
interesting  development,  all  of  the  eleven  com- 
mittees created  were  composed  of  a  very  small 
number  of  men  —  men  who  were  leaders  in  the 
upper  house.  The  extent  to  which  this  concentra- 
tion of  control  was  carried  is  indicated  by  an  ex- 
amination of  the  make-up  of  the  committees. 
John  Quincy  Adams  served  upon  every  one  of  them, 
and  was  chairman  of  one;  General  Samuel  Smith 
of  Maryland  upon  ten  of  the  eleven,  and  was  chair- 
man of  seven;  Anderson  of  Tennessee  upon  five, 
and  was  chairman  of  two ;  Bradley  of  Vermont  upon 
five;  Mitchell  of  New  York,  and  Gregg  of  Pennsyl- 
vania upon  three;  Giles  of  Virginia  upon  two,  and 
was  chairman  of  one;  and  Gaillard,  Sumter,  Hill- 
house,  and  Milledge  upon  one  each.  The  fortj'- 
three  committee  places  were  held  bj'  just  eleven 
men,  and  of  the  eleven  four  sat  upon  only  one 
committee. 

Thus,  although  formall}^  the  Senate  appointed 
eleven  select  committees,  each  indej^endent  of  the 
others,  yet  the  sum  total  of  these  bodies  in  member- 
ship practically  amounted  to  a  standing  committee 
of  eleven  members,  or,  if  the  four  men  serving  on 


SENATE   COMMITTEE    ON   FOREIGN    RELATIONS      181 

just  one  committee  be  eliminated,  of  seven.  In 
this  instance,  as  in  many  others  to  be  found  in  the 
study  of  the  procedure  of  legislative  l)odies,  the 
fact  preceded  the  form;  the  institution,  a  standing 
committee  on  foreign  relations,  was  gradually  com- 
ing into  existence  before  it  was  formally  recognized 
and  named. 

From  1807  on,  the  development  of  the  committee 
took  on  a  more  obvious  form.  As  has  been  inti- 
mated, it  finally  grew  out  of  the  custom  of  referring 
to  select  committees  given  subjects  mentioned  in 
the  annual  messages.  "  Such  a  committee  was  raised 
on  so  much  of  Jefferson's  last  annual  message  as 
concerned  our  relations  with  the  Barbary  powers.^ 
A  year  later  Madison's  message  set  forth  the  critical 
condition  of  the  relations  of  this  country  with  Great 
Britain  and  Spain,  and  with  it  the  President  sub- 
mitted to  Congress  diplomatic  correspondence  show- 
ing the  situation  with  reference  to  these  nations.- 
On  the  day  following  its  delivery,  Giles,  of  Mrginia, 
submitted  the  following  resolution  for  consideration.^ 

Resolved,  That  so  much  of  the  message  of  the  President 
of  the  United  States  as  respects  the  relations  exist  mg  be- 
tween the  United  States  and  Great  Britain  and  France, 
with  the  accompanying  documents,  be  referred  to  a  select 
connnittee.  with  instructions  to  examine  the  same  and 

1  Annah  of  Congress,  10th  Cong.  2d.  Ses.s.,  1808-1809  p.  19. 

2  Richardson,  Messages,  I.  473-477. 

3  WilHani  Branch  Giles  was  one  of  the  most  jn-ominent  of  the 
Repubhcan  Senators  during  this  entire  period.  He  played  an 
influential  role  in  the  action  of  the  Senate  in  foreign  relations,  and 
served  upon  many  of  the  committees  appointed  on  the  subject. 
His  career  is  traced  carefully,  but  without  inspiration  in,  Anderson, 
William  Branch  Giles:  A  Study  in  the  Folitics  of  Virginia  and  (he 
Nation  from  1790  to  1830  (Menasha,  Wisconsin,  1914). 


182  THE    SENATE    AND    TREATIES 

report  thereon  to  the  Senate;  and  that  the  committee 
have  leave  to  report  by  bill,  bills,  or  otherwise.^ 

The  resolution  was  adopted  by  the  Senate,  and  Giles, 
Pope,  Bradley,  Goodrich,  Leib,  Sumter,  and  Gil- 
man  were  chosen  to  be  the  committee. ^  This  com- 
mittee, or  its  leaders,  all  through  the  session  played 
a  predominant  part  in  the  haphazard  efforts  of  the 
politicians  in  the  Senate  at  once  to  stave  off  a  war 
with  England  and  to  safeguard  American  interests, 
so  far  as  was  consistent  with  economy,  Republican 
principles,  and  their  own  pej'sonal  political  ambi- 
tions. It  was  this  committee  that  reported  Giles's 
famous  resolution,  verbally  castigating  His  Britannic 
Majesty's  minister,  Francis  James  Jackson,  for  the 
imputations  of  bad  faith  which  he  had  cast  upon 
the  government,  and  pledging  to  the  executive  the 
support  of  Congress  in  repelling  his  insolence.  At 
the  same  time  it  brought  in  a  bill  to  prevent  the 
abuse  of  the  privileges  and  immunities  enjoyed  by 
foreign  ministers  in  the  United  States. ^  Early  in 
January  the  message  from  the  President  recom- 
mending an  increase  in  the  army  and  the  organiza- 
tion of  the  militia  was  referred  to  the  same  com- 
mittee. A  week  later  Giles  reported  for  the  com- 
mittee a  bill  authorizing  the  President  to  man,  fit 
out,  and  officer  the  frigates  of  the  United  States. 
In  this  connection  the  committee  had  carried  on  a 
correspondence  with  the  Secretary  of  the  Navy, 
which  was  now  ordered  to  be  printed.     On  the  last 

»  Annals  of  Congress,  1808-1809,  I.  478. 
2  Ibid.,  pp.  478-479. 

»  An7ials  of  Congress,   1808-1809,   I.  481-482;    see  also  IMoore, 
International  Lair  Digest,  l\.  .')1 1-513. 


SENATE   COMMITTEE    ON    FOREIGN    RELATIONS      183 

day  of  tlie  inoiitli  ]\Ir.  German  presented  resolu- 
tions providing  for  convoys  for  American  merchant- 
men, and  this  proposition  was  referred  to  Giles's 
committee.  The  non-intercourse  bill,  which  came 
up  from  the  House  and  which  was  intended  to  re- 
place the  expiring  embargo,  was  intrusted  to  another 
group,  while  a  House  bill  providing  for  the  pro- 
tection of  Mediterranean  commerce  was  passed 
without  any  reference  whatever.^  But  Giles  and 
his  colleagues  participated  in  the  action  of  the 
Senate  upon  these  measures,  and,  indeed,  the  com- 
mittee exercised  a  potent  influence  over  the  Senate 
during  this  session  in  all  matters  pertaining  to 
England  and  France. 

Early  in  the  session  commencing  in  December, 
1810,  again  upon  motion  of  Giles,  the  Senate  adopted 
a  resolution  in  terms  identical  with  the  one  of  1809 
setting  up  a  committee  on  so  much  of  the  annual 
message  as  referred  to  the  relations  between  the 
United  States,  Great  Britain,  and  France.-  Giles, 
Crawford,  Anderson,  Goodrich,  and  Pope  were 
chosen  to  serve,  all  except  Goodrich  being  Re- 
publicans of  national  prominence.  To  these  men 
were  referred  petitions  of  individuals  asking  to  be 
i-eheved  from  some  of  the  provisions  of  the  Non- 
intercourse  Act.^  As  a  matter  of  fact,  however, 
the  committee  was  of  shght  consequence  during 
this  session,  because  the  absorbing  subject  of  in- 
terest during  the  winter  of  1810  was  that  of  the 
Floridas;  and  the  measures  by  which  the  Senate 
proposed  to  bring  this  territory  under  the  control 

'  Araials  of  Congress,  1808-1809,  I.  520,  526,  530-531,  550,  587. 
=  Ibid.,  1810-181 1,  p.  16.  5  Jbid.,  pp.  21,  250. 


184  THE    SENATE   AND   TREATIES 

of  the  United  States  were  referred  to  other  com- 
mittees. Upon  so  much  of  the  President's  message 
as  concerned  the  occupation  of  West  Florida  was 
raised  a  committee  composed  of  Giles,  Pope,  Ander- 
son, Crawford,  and  Bradley.^  This  was  done  upon 
motion  of  Giles,  and  it  is  to  be  noticed  that,  except 
for  the  substitution  of  Bradley  for  Goodrich,  the 
only  Federalist  in  the  other  group,  the  two  com- 
mittees were  identical.  In  response  to  a  confiden- 
tial message  from  Madison,  the  subject  of  East 
Florida  was  taken  up  in  secret  session.  Three 
measures  were  passed  in  this  connection:  an  act 
authorizing  the  President  to  take  possession  of  the 
country,  a  resolution  declaring  to  the  world  the 
position  of  the  United  States  with  reference  to  this 
territory,  and  a  resolution  ordering  that  these  acts 
be  not  published  without  the  direction  of  the  Presi- 
dent.^  Three  committees  acted  in  the  transaction 
of  this  business.  The  first  was  composed  of  Clay, 
Crawford,  Bradley,  Smith  of  Maryland,  and  Ander- 
son; the  second  of  Bayard,  Crawford,  and  Clay; 
the  third  of  Anderson,  Crawford,  Clay,  Bradley, 
and  Smith  of  Maryland.^  It  will  be  observed,  of 
course,  that  the  personnel  of  these  committees  and 
of  the  two  earlier  chosen  was  strictly  limited.  All 
five,  in  fact,  were  composed  of  a  small  group  of  the 
leading    Republicans    of    the    upper    house.     Yet 

1  Annals  of  Congress,  1810-1811,  pp.  16-17. 

2  See  Hildreth,  History  of  the  United  States,  III.  (2d  series), 
xxiii;  Adams,  Histm-y  of  the  United  States,  V.  xv;  Chadwick,  Rela- 
tions of  the  United  States  and  Spain,  Diplomacy,  Ch.  VI.  It  was 
in  connection  with  this  matter  that  Pickering  was  censured  by  the 
Senate  for  reading  confidential  papers  in  open  session. 

»  Sen.  Exec.  Jour.,  II.  176,  182. 


SENATE   COMMITTEE    ON    FOREIGN    RELATIONS      185 

formally  each  group  was  a  separate,  independent, 
select  committee,  bearing  no  organic  relation  to  any 
of  the  others. 

Again,  at  the  beginning  of  the  session  of  1811- 
1812,  so  much  of  the  annual  message  as  concerned 
the  relations  between  the- United  States,  France,  and 
Great  Britain  was  referred  to  a  select  committee. 
Giles,  Crawford,  Gregg,  Frankhn,  Lloyd,  and  Pope 
were  named,  Giles  being  once  more  the  chairman.^ 

The  committee  which  was  appointed  a  year  later 
marked  in  its  title  an  advance  towards  the  form 
which  later  became  the  accepted  one.  In  his  an- 
nual message  of  1812,  Madison  had  adverted  to  our 
relations  with  Great  Britain,  with  whom  we  were 
at  war,  and  with  France,  Denmark,  Russia,  Sweden 
and  the  Barbary  States.^  On  the  day  following, 
four  motions  were  submitted  providing  for  the 
reference  of  four  of  the  most  important  subjects 
treated  in  the  message  to  as  many  select  committees. 
The  first  resolution  includes  so  much  of  the  message 
as  concerned  "our  relations  with  foreign  powers, 
the  ^Military  Establishment  of  the  United  States 
and  volunteers." ''  All  four  resolutions  were 
adopted,  and  Franklin,  Campbell  of  Tennessee, 
Taylor,  \'arnum,  Howell,  Robinson,  and  Worthing- 
ton  were  chosen  to  serve  on  the  first-named  com- 
mittee. This  committee  was  active  throughout  the 
session,  and  exhibited  more  of  the  characteristics 

'  Annals  of  Congress,  1811-1812,  pp.  15-17. 

2  Ibid.,  1812-1813,  pp.  13-14. 

*  Ibid.,  p.  17.  The  other  subjects  were:  The  naval  estabHsh- 
ment  of  the  United  States;  American  vessels  which  had  arrived  in 
the  United  States  laden  with  British  manufactures;  the  revision 
of  the  militia  laws. 


186  THE    SENATE    AND    TREATIES 

of  a  real  committee  on  foreign  relations  than  had 
any  of  its  predecessors.  Early  in  the  session  a 
communication  from  Madison  concerning  the  at- 
tempt which  had  been  made  through  Jonathan 
Russell  to  bring  about  a  suspension  of  hostilities 
with  Great  Britain  was  referred  to  it  as  "the  Com- 
mittee on  Foreign  Relations."  ^  A  few  days  later 
another  letter  on  the  same  subject  was  referred  to 
the  "committee  who  have  under  consideration  so 
much  of  the  message  of  the  President  of  the  United 
States,  of  the  4th  instant,  'as  concerns  our  relations 
with  foreign  Powers.'"  This  matter  of  nomencla- 
ture may  be  of  little  importance  in  itself,  but  it  is 
not  without  interest  to  observe  how  the  name  of 
this  great  committee  gradually  came  into  use. 
During  this  and  several  sessions  following,  the  title 
"Committee  on  Foreign  Relations"  frequentl.y,  in 
fact  usually,  was  applied  to  the  body  appointed 
under  the  sort  of  resolution  which  has  been  de- 
scribed. On  the  other  hand,  the  committee  often 
was  referred  to  in  other  ways  —  described,  rather 
than  named. 

A  review  of  the  measures  which  came  before  the 
committee  during  this  session  reveals  a  slight  in- 
crease in  the  specialization  of  its  functions.  It 
was  occupied  with  fewer  matters  not  bearing  directly 
on  foreign  relations,  and  at  the  same  time  the  Senate 
passed  or  considered  a  smaller  number  of  measures 
in  this  particular  field  without  consulting  it.^ 

A  conscious  step  towards  the  specialization  of  the 

•  Annals  of  Congress,  1811-1812,  19. 

=  Ibid.,  pp.  18-19,  21,  27,  39,  94.  101,  104,  lOf),  112,  113,  115, 
117,  121. 


SENATE   COMMITTEE    ON    FOREIGN   RELATIONS       187 

function  of  the  committee  was  made  when  Congress 
met  in  May,  1813.  On  the  day  following  the  read- 
ing of  Aladison's  message,  a  resolution  was  intro- 
duced pro\'iding  that  so  much  of  it  as  concerned  our 
relations  with  foreign  Powers  and  the  military 
establishment  be  referred  to  a  select  committee. 
At  the  same  time  it  was  moved  that  the  part  of 
the  message  relating  to  the  naval  establishment  be 
referred  to  another  committee.  The  next  day,  how- 
ever, military  affairs  were  separated  from  foreign 
relations,  select  conunittees  being  set  up  on  each  of 
the  three  subjects.^  During  this  session,  also,  a 
still  greater  homogeneity  is  to  be  observed  in  the 
measures  considered  by  the  committee,  practically 
all  of  the  business  arising  from  our  troubles  with 
Great  Britain  passing  through  its  hands.-  At  the 
same  time,  however,  a  very  important  part  of  the 
business  of  the  Senate  in  the  field  of  foreign  relations 
was  being  carried  on  with  the  assistance  of  other 
groups.  Early  in  the  session  Madison  submitted 
to  the  Senate  the  nominations  of  Gallatin,  Adams, 
and  Bayard  as  peace  envoys,  along  with  that  of 
Jonathan  Russell  as  minister  to  Sweden.'^  The 
nominations  of  Gallatin  and  Russell  were  opposed, 
largely  from  political  motives,  but  in  the  former 
case  for  the  ostensible  reason  that  the  position  was 
incompatible  with  that  of  Secretary  of  the  Treasury, 
and  in  the  latter  upon  the  ground  that  it  was  in- 
expedient at  that  time  to  send  a  minister  to  Sweden. 
A   bitter  struggle   followed,   which   resulted   in   the 

1  Annals  of  Congress,  1813-1814,  1,  18-19. 

2  Ibid.,  pp.  25,  31,  36-39,  45,  47,  .55,  59. 
'  Sen.  Exec.  Jour.,  II.  347. 


188  THE    SENATE    AND    TREATIES 

rejection  of  both  names.  The  fact  of  interest  is 
that  in  considering  the  nominations,  and  in  carry- 
ing on  its  struggle  with  the  President  over  them, 
the  Senate  acted  through  select  committees,  rather 
than  through  the  group  which  had  been  appointed 
at  the  beginning  of  the  session  to  consider  foreign 
relations.  Not  only  that,  but  a  comparison  of  the 
personnel  of  these  committees  with  that  of  the 
Foreign  Relations  Committee  shows  that  the  mem- 
bership of  the  former  contained  by  far  the  weightier 
Senators.^  A  few  years  later  neither  of  these  con- 
ditions would  have  existed. 

During  the  second  session  of  the  thirteenth  Con- 
gress, which  met  in  December,  1813,  the  functions 
of  the  Committee  on  Foreign  Relations  possessed 
even  greater  unity,  and  were  of  larger  importance 
than  during  previous  years.  An  enumeration  of  the 
matters  of  business  coming  before  it  is,  perhaps, 
the  most  effective  means  of  setting  forth  its  func- 
tions at  this  time.  During  the  session  it  had  under 
consideration  the  following  measures:  the  message 
of  the  President  recommending  an  embargo,  a  bill 
which  it  reported  in  response  thereto,  and  the  House 
embargo  bill  which  ultimately  became  law;  the  bill, 
which  it  reported,  prohibiting  the  importation  of 
certain  articles  derived  principally  from  Great 
Britain;  Madison's  message  submitting  to  Congress 
the  British  rejection  of  Russian  meditation,  and 
Lord  Castlereagh's  offer  to  treat  for  peace  directly; 
the  message  recommending  the  repeal  of  the  embargo 

1  Sen.  Exec.  Jour.,  II.  347,  352,  SrA,  395.  Adams,  Hi.slonj  of  the 
United  States,  VII.  59-64,  presents  a  most,  interesting  diseussion  of 
this  struggle,  its  outeome,  and  its  j^olitical  significance. 


SENATE   COMMITTEE    ON    FOREIGN    RELATIONS       189 

and  the  extension  of  additional  duties  for  a  period 
of  two  years  after  the  war;  two  petitions  on  this 
subject;  the  bill  for  the  repeal  of  the  Embargo  Act; 
a  proposal  to  pass  an  act  prohibiting  the  exporta- 
tion of  sheep  from  the  United  States;  a  bill,  which 
it  reported  but  which  failed  to  pass,  prohibiting  the 
exportation  of  specie,  gold  or  silver  coins,  or  bullion; 
bills  providing  for  the  more  effectual  enforcement  of 
the  Non-Importation  Act,  and  for  the  return  to 
their  own  districts  of  vessels  detained  in  other  dis- 
tricts under  the  terms  of  the  Embargo  Act,  and, 
finally,  numerous  bills  for  the  relief  of  individuals 
seeking  exemption  from  pains  and  penalties  incurred 
by  alleged  violations  of  the  Non-Importation  and 
other  war  acts.^ 

These  measures  comprise  all  of  the  more  important 
matters  of  general  business  arising  out  of  the  foreign 
relations  of  the  United  States  at  this  time.  All 
had  some  bearing  on  the  war  with  Great  Britain, 
and  all  were  legislative  in  their  character.  But 
during  this  session  no  business  concerning  our  re- 
lations with  any  other  power  came  before  the  Senate, 
except  the  appointment  of  foreign  ministers.  This 
subject,  of  course,  was  considered  in  executive  ses- 
sion, and  no  committees  were  employed  in  connec- 
tion with  any  diplomatic  appointment  passed  upon 
at  this  time.  Thus  the  Committee  on  Foreign 
Relations  had  practically  a  monopoly  of  the  busi- 
ness transacted  by  the  Senate  within  its  field. 

The  special  session  commencing  in  September, 
1814,   offers  three  points  of  particular  interest  in 

1  Annals  of  Congress,  1813-1814,  I.  .549,  550,  551,  562,  565,  570, 
601,  613. 


190  THE    SENATE    AND    TREATIES 

the  history  of  the  committee.  The  first  has  to  do 
with  the  manner  of  its  choice.  Madison's  message, 
laying  before  Congress  the  facts  of  the  mihtary 
situation  and  the  needs  of  the  army,  the  navy,  and 
the  treasurj^,  contained  no  suggestions  on  foreign 
relations  which  demanded  the  immediate  attention 
of  the  Senate.  Consequently  the  usual  reference  to 
a  select  committee  of  that  part  of  the  message  which 
touched  upon  such  relations  was  hardly  in  order, 
and  at  the  beginning  of  the  session  no  such  com- 
mittee was  created.^  On  October  10,  however, 
the  President  communicated  to  Congress  letters 
from  the  American  peace  envoys,  and  four  days 
later  submitted  the  instructions  under  which  they 
were  acting.  Whereupon  the  Senate  passed  a  reso- 
lution that  these  documents,  together  with  the 
several  communications  from  the  President  since 
the  beginning  of  the  session,  should  be  referred  to  a 
select  committee.  Bibb,  Taylor,  King,  Brown,  and 
Chase  were  chosen  as  the  committee,  and  during 
the  remainder  of  the  session  were  usually  referred 
to  as  the  "Committee  on  Foreign  Relations."  As 
such  they  were  the  organ  of  the  Senate  for  the 
transaction  of  the  same  sort  of  business  that  had 
been  assigned  to  similar  committees  in  years  past.^ 
Such  a  body  might,  perhaps,  be  described  as  a 
quasi-standing  committee.     It  was  not  created  as  a 

1  Richardson,  Messages,  I.  547-551.  The  only  parts  of  the 
message  which  were  referred  to  select  committees  at  this  time  were 
those  concerning  the  militia  and  military  affairs.  Annals  of  Con- 
gress, 1814-1815,  III.  16,  24,  27. 

2  Ibid.,  pp.  24,  27,  164,  245-250,  260,  269,  270,  275,  278,  280, 
294^297. 


SENATE    COMMITTEE    ON    FOREIGN    RELATIONS       191 

standing  coininittee,  and,  so  far  as  the  formal  action 
of  the  house  went,  it  was  on  the  same  basis  as  any 
select  committee.  But  in  everything  but  name  it 
certainly  possessed  the  characteristics  of  the  stand- 
ing committee,  even  to  that  of  continuity  of  member- 
ship from  session  to  session.^ 

On  the  last  day  of  the  session  Bibb's  committee 
brought  in  a  report  which  is  of  interest  because  it 
was  the  first  of  a  type  which  frequently  appears  in 
the  later  history  of  the  Committee  on  Foreign  Re- 
lations. Soon  after  Congress  had  assembled,  Madi- 
son had  communicated  to  both  houses  correspond- 
ence which  had  passed  between  himself  and  Admiral 
Cochrane,  in  command  of  the  British  fleet  on  the 
American  station,  relative  to  the  devastation  which 
the  British  threatened  to  mete  out  to  American 
coast  towns  in  retaliation  for  wanton  destruction 
alleged  to  have  been  committed  by  the  American 
army  in  upper  Canada.-  The  incident  mentioned 
was  the  burning  of  York,  which  later  was  pointed 
to  by  the  British  as  a  justification  for  the  destruc- 
tion of  the  public  buildings  in  Washington  and  other 
outrages  of  the  same  nature.  The  Senate  referred 
the  correspondence  to  the  Committee  on  Foreign 
Relations,  and  just  before  adjournment  the  chair- 

»  Bibb,  the  chairman  of  this  coinniittco,  and  Taylor,  Chase, 
and  Brown  had  served  on  the  Foreign  Rehitions  Committee  of  the 
preceding  session.  Also  the  committee  had  dropped  back  to  five 
members,  the  size  which  it  had  had  until  the  year  before,  when  it 
had  gone  to  seven.  Rufus  King  was  the  only  member  of  the  new- 
committee  who  had  not  served  on  its  immediate  predecessor  — 
and  no  man  then  in  the  Senate  was  possessed  of  more  experience  in 
the  field  of  foreign  relations  than  King. 

2  Am.  Stale  Papen,  For.  Rels.,  III.  093-G9.3. 


192  THE    SENATE    AND    TKEATIES 

man  of  this  body  submitted  a  report  giving  the  re- 
sult of  their  inquiries,  which,  it  was  declared,  mani- 
fested ''to  the  world  that  the  plea  which  had  been 
advanced  for  the  destruction  of  the  American 
Capitol  and  the  plunder  of  private  property"  was 
without  foundation.^  As  an  organ  for  the  formu- 
lation of  the  opinion  of  the  Senate  upon  matters 
concerning  the  foreign  relations  of  the  United  States, 
the  committee  has  produced  some  manifestoes  which 
have  been  of  far-reaching  importance  in  the  history 
of  the  nation.  Although  its  report  on  the  "re- 
tahating  system"  as  practiced  by  Great  Britain 
during  the  War  of  1812  does  not  rank  as  an  important 
state  paper,  yet  it  is  worth  noting  because  it  is  the 
first  product  of  this  sort  of  activity  on  the  part  of 
the  committee. 

The  third  significant  event  of  the  special  session 
of  1814  was  the  use  of  the  Committee  on  Foreign 
Relations  in  executive  session  in  connection  with  the 
proceedings  on  the  Treaty  of  Ghent.  The  incident 
occurred  two  days  after  the  Senate  had"  consented 
to  the  ratification  of  the  treaty,  when  a  motion  to 
remove  the  injunction  of  secrecy  from  the  proceed- 
ings and  to  print  the  documents  connected  there- 
with was  referred  to  the  "Committee  on  Foreign 
Relations."-  The  reference  marks  the  point  at 
which  this  committee,  after  having  come  into  being 
during  a  decade  when  no  treaties  were  before  the 
Senate,  began  to  perform  the  functions  which  in- 
evitably were  to  be  assigned  to  it,  and  in  the  exercise 
of  which  it  was  to  reach  its  greatest  usefulness  and 

1  Am.  State  Papers,  For.  Rels.,  III.  294-296. 
-  Sen.  Exec.  Jour.,  II.  621. 


SENATE    COMMITTEE    ON    FOREIGN    RELATIONS      193 

power.  Hitherto  it  had  been  a  legislative  com- 
mittee; it  had  been  used  almost  exclusively  for  the 
transaction  of  legislative  business;  no  allusion  to 
it  is  to  be  found  in  the  executive  journal.  From 
this  time  on,  its  most  important  business  was  to 
be  transacted  in  executive  session,  and  every  treaty 
laid  before  the  Senate  was  to  be  considered  by  it. 
At  the  beginning  of  the  session  of  1815  the  usual 
reference  of  the  several  parts  of  the  annual  mes- 
sage was  made,  and  it  was  not  until  a  year  later, 
December,  1816,  that  the  Committee  on  Foreign 
Relations  became  the  first  standing  committee  of 
the  United  States  Senate.^  On  the  day  following 
the  reading  of  Madison's  last  annual  address, 
Nathan  Sanford  of  New  York  submitted  thirteen 
resolutions,  each  referring  a  certain  part  of  the  mes- 
sage to  a  select  committee,  with  leave  to  report  by 
bill  or  otherwise.  On  the  next  day,  however.  Sena- 
tor Barbour  of  Virginia  introduced  a  resolution  pro- 
viding that  it  should  be  one  of  the  rules  of  the  Senate 
that  eleven  standing  committees,  which  were  named, 
should  be  appointed  at  each  session.  After  dis- 
cussion during  several  days,  the  resolution  was 
passed  on  December  10,  the  Committee  on  Foreign 
Relations  heading  the  list.  Three  days  later  Bar- 
bour, Mason,  King,  Dana,  and  Lacock  were  chosen 
to  be  members  of  the  committee. - 

'  Annals  of  Congress,  lSl.5-1816,  pp.  19,  20.  Committees  were 
chosen  to  consider  those  parts  of  the  message  concerning  foreign 
affairs,  the  militia,  mihtary  affairs,  naval  affairs,  finance  and  a 
uniform  national  currency,  manufactures,  roads  and  canals,  and  a 
national  seminary  of  learning  within  the  District  of  Cohunbia. 

2  Annals  of  Congress,  181G-1S17,  pp.  18-22,  30,  32.  Tlie  other 
committees   named  were  those  on  finance,   commerce  and   manu- 


194  THE    SENATE    AND    TREATIES 

Thus  was  established  the  Committee  on  Foreign 
Relations  of  the  United  States  Senate.  Along 
with  the  ten  other  committees  made  permanent  at 
the  same  time,  it  had  gradually  come  into  exist- 
ence during  the  decade  and  more  of  stress  and 
strain  which  preceded  the  conclusion  of  the  War 
of  1812.  During  the  earlier  years  of  the  govern- 
ment, treaties  and  foreign  affairs  generally  had 
been  referred  to  select  committees  occasionally 
but  in  accordance  with  no  particular  rules  of 
procedure.  An  increasing  pressure  of  business,  a 
pressure  which  became  heavy  during  the  war, 
demanded  a  greater  efficiency  of  the  Senate.  The 
demand  was  met  by  a  speciaUzation  of  function 
—  by  the  development  of  a  system  of  standing 
committees  which  practically  came  into  existence 
some  time  before  it  was  formally  made  a  part 
of  the  organization  of  the  Senate.  This  speciaUza- 
tion developed  first  in  the  field  of  foreign  relations, 
and  as  at  this  time  the  business  in  this  field  was 
almost  wholly  legislative  in  its  nature,  the  Com- 
mittee on  Foreign  Relations  developed  as  a  legis- 
lative  committee.     With   the   consideration   of   the 

factures,  military  affairs,  the  militia,  naval  affairs,  public  lands, 
claims,  the  jndiciar_v,  the  post  office  and  post  roads,  and  pensions. 
All  of  the  members  of  this  first  Standing  Committee  on  Foreign 
Relations  were  leaders  in  the  Senate  and  in  the  nation.  Barbour 
was  a  member  continuously  from  1816  until  1824,  the  last  session 
before  he  left  the  Senate  to  become  Secretary  of  War.  He  was 
chairman  in  1816,  1817,  1820,  1822,  1823,  and  1824.  Nathaniel 
Mason  was  a  member  of  the  committee  for  twelve  years,  and  was 
thrice  chairman.  Except  for  one  session,  Rufus  King  served  from 
1815  to  1823.  S.  W.  Dana  served  only  during  the  session  of  1816, 
while  Abner  Lacock  was  a  member  for  three  years.  King  and  Dana 
were  the  Federalist  members. 


SENATE   COMMITTEE    ON    FOREIGN    RELATIONS       195 

message  and  documents  on  the  Treaty  of  Ghent 
its  executive  functions  began,  and  it  became  the 
organ  of  the  Senate  for  the  transaction  of  executive 
as  well  as  legislative  business  within  the  realm  of 
foreign  affairs. 


CHAPTER   IX 

The  Senate  and  Treaties  at  the  End  of 
THE  Formative  Period 

The  procedure  followed  by  the  Senate  in  its 
action  upon  the  Treaty  of  Ghent  departs  in  no  im- 
portant particular  from  the  norm  which  had  be- 
come estabhshed  by  1805.  The  struggle  between 
Madison  and  the  upper  house  over  the  appointment 
of  Qallatin,  and  their  differences  upon  the  propriety 
of  recess  appointments  which  were  not  to  fill  con- 
stitutional "vacancies,"  concern  the  appointing 
more  directly  than  the  treaty-making  powers  of 
the  Senate.  In  finally  confirming  the  appointment 
of  commissioners  to  negotiate  treaties  of  peace  and 
of  commerce  with  England,  a  treaty  of  commerce 
with  Russia,  and  one  of  commerce  with  Sweden, 
no  formal  effort  was  made  by  the  Senate  to  as- 
certain in  detail  what  it  was  proposed  to  embody  in 
the  agreements.^ 

When  the  Treaty  of  Ghent  was  laid  before  the 
Senate  in  February,  1814,  that  body  accepted  it 
with  what  may,  perhaps,  be  described  as  eagerness. 
The  instrument  was  submitted  on  the  fifteenth, 
and  the  President's  statement  that,  "the  termina- 
tion  of  hostilities  depends   upon  the   time   of   the 

1  Sen.  Exec.  Jour.,  II.  346,  348,  349,  351,  353-355,  384.  388-390, 
451-454. 

196 


END    OF   THE    FORMATIVE    PERIOD  107 

ratification  of  the  treaty  by  both  parties,"  '  led  the 
Senate  to  exi^edite  its  consideration.  The  message, 
the  treaty,  and  the  accompanying  documents  were 
read,  and  by  unanimous  consent  the  treaty  was 
read  a  second  time,  after  which  General  Smith  in- 
troduced a  resolution  giving  the  advice  and  consent 
of  the  Senate  to  its  ratification.  Rufus  King,  how- 
ever, interposed  with  a  motion  that  the  President 
be  requested  to  lay  before  the  Senate  all  the  in- 
structions given  to  the  envoys,  together  with  all 
correspondence  and  protocols  connected  with  the 
negotiation  which  they  had  not  previously  received. 
The  adoption  of  King's  resolution  held  up  further 
consideration  of  the  treaty  until  the  next  day,  when, 
upon  the  receipt  of  the  documents  asked  for,  the 
resolution  of  advice  and  consent  was  passed  without 
further  dela3^'- 

During  the  first  session  of  the  fourteenth  Congress 
the  two  treaties  which  were  acted  upon  by  the  Senate 
were  considered  under  procedure  which  seems  to 
have  changed  from  that  provided  for  by  the  rules 
which  had  been  adopted  in  1801  only  in  the  employ- 
ment of  the  committee  on  foreign  relations.  In 
the  first  executive  message  of  the  session  Madison 
submitted  the  commercial  convention  with  Great 
Britain,  which  had  been  concluded  the  preceding 
July,''  and  the  treaty  of  peace  with  Algiers,  which 
had  been  signed  at  the  end  of  June.  Both  of  the 
treaties  and  the  documents  which  had  accompanied 

»  Seji.  Exec.  Jour.,  II.  618-619.  It  seems  not  unlikely  tliat  the 
necessity  of  speedy  action  led  the  Senate  to  deal  with  the  question 
directly,  and  without  the  assistance  of  a  committee. 

2  Ifnd.,  pp.  619,  620.  '  July  3,  1815. 


198  THE    SENATE    AND    TREATIES 

them  were  ordered  to  be  printed  for  the  use  of  the 
Senate,  under  an  injunction  of  secrecy  —  action 
which  was  almost  invariably  taken  from  this  time 
on  immediately  after  the  receipt  of  a  treaty  by  the 
Senate.  On  the  following  day  the  British  treaty 
was  referred  to  the  committee  on  foreign  relations, 
which  shortly  afterwards  reported  a  resolution  of 
advice  and  consent.  With  slight  modification  this 
resolution  was  adopted,  only  one  Senator  opposing 
ratification.  The  treaty  of  peace  with  Algiers  was 
not  formally  referred  to  the  committee  on  foreign 
relations,  but  the  resolution  providing  for  its  rati- 
fication was  introduced  by  Mr.  Bibb,  the  chairman 
of  that  body,  and  was  passed  without  opposition,^ 
The  commercial  convention  with  Sweden  signed 
by  Jonathan  Russell  on  September  4,  1816,  was 
submitted  to  the  Senate  early  in  December.  ^  Pro- 
cedure upon  it  followed  the  customary  lines,  al- 
though the  Senate  gave  its  consent  to  ratification, 
only  upon  the  condition  that  three  of  the  articles 
be  expunged.  After  first  reading,  the  convention 
was  referred  to  the  committee  on  foreign  relations, 
of  which  James  Barbour  of  Virginia  was  then  chair- 
man.^ Two  weeks  later  Barbour  brought  in  a 
report  recommending  that  the  treaty  be  printed  in 
both  French  and  English,  and  that  a  letter  from 
Russell  to  the  Secretary  of  State  respecting  its 
negotiation  also  be  printed.^     After  the  Senate  had 

1  Sen.  Exec.  Jour.,  III.  8,  4,  6-8.  On  January  2,  181().  on 
motion  of  Bibb,  the  injunction  of  secrecy  was  removed  from  the 
proceedinfis  of  the  Senate  upon  the  treaties  with  Creat  Britain  and 
Algiers.    Ibid.,  p.  14. 

2  Sen.  Exec.  Jour.,  III.  (iO-61.  ^  //„-,/^  p  cj 

*  This  r('[)ort  aj)j)(>ars  in  (\,vi]/il(ilion  of  Reports,  Sen.  Com.  For. 


END    OF   THE    FORMATIVE    PERIOD  199 

considered  the  treaty  in  committee  of  the  whole 
upon  several  different  days,  Barbour  introduced  a 
resolution  providing  for  its  ratification  with  the  ex- 
ception of  the  third,  fourth,  and  sixth  articles. 
This  resolution  was  adopted  on  the  following  day 
with  only  two  votes  registered  in  the  negative.^ 

The  procedure  of  the  Senate  in  considering  the 
four  treaties  which  were  before  them  in  1815 
and  181G,  thus  followed  very  closely  the  lines  which 
had  been  laid  down  during  the  first  fifteen  years 
of  government  under  the  (Constitution,  except  in 
the  use  which  was  made  of  a  standing  committee  on 
foreign  relations.  Nor  has  there  been  any  radical 
change  in  Senate  procedure  since  1816. 

THE    SENATE    AND    THE    NEGOTIATION    OF   TREATIES 

During  this  same  period  an  important  principle 
w^hich  had  been  gradually  developing  with  reference 
to  another  aspect  of  the  treaty-making  power 
became  more  firmly  established.  This  was  the 
principle  that  the  Senate  should  not  attempt  to 
participate  formally  in  treaty-making  until  after  the 
process  of  negotiation  had  been  completed.  Wash- 
ington and  the  earliest  Senates  had  endeavored  to 
apply  a  different  theory,  which  the  early  treaties 
wdth  Indian  tribes  had  proved  to  be  unworkable, 
and  which  had  gradually  been  abandoned  in  prac- 
tice, although  never  formally  renounced. 

The  matter  had  been  threshed  out  very  thor- 
oughly in  1806,  when  the  President  was  asked  to 

Rels.,  VIII.  26,  under  the  incorrect  date  of  Januarj-  3,  1817.     It  was 
submitted  January  3,  1816.     Sen.  Exec.  Jour.,  III.  68. 
»  Ibid.,  pp.  72,  74-75,  77,  78. 


200  THE    SENATE    AND    TREATIES 

take  certain  specific  action  with  reference  to  British 
aggressions  on  American  commerce.  The  debate 
was  upon  the  question  of  the  adoption  of  the  fol- 
lowing resolution,  the  second  of  three  which  had 
been  introduced  by  a  committee  of  which  General 
Smith,  John  Quinc}'  Adams,  and  Joseph  Anderson 
were  the  leading  members: 

Resolved,  That  the  President  of  the  United  States  be 
requested  to  demand  and  insist  upon  the  restoration  of 
the  property  of  their  citizens,  captured  and  condemned 
on  the  pretext  of  its  being  employed  in  a  trade  with  the 
enemies  of  Great  Britain,  prohibited  in  time  of  peace; 
and  upon  the  indemnification  of  such  American  citizens, 
for  their  losses  and  damages  sustained  by  these  captures 
and  condemnations;  and  to  enter  upon  such  arrange- 
ments with  the  British  Government,  on  this  and  all 
other  differences  subsisting  between  the  two  nations,  and 
particularly  respecting  the  impressment  of  American 
seamen,  as  may  be  consistent  with  the  honor  and  interests 
of  the  United  States,  and  manifest  their  earnest  desire 
to  obtain  for  themselves,  and  their  citizens,  by  amicable 
negotiations,  that  justice  to  which  they  are  entitled.^ 

In  the  debate  which  followed  the  introduction 
of  this  resolution,  some  of  the  ablest  students  of  the 
Constitution  and  most  influential  Senators  of  the 
day  expressed  their  opinions  upon  the  advisability 
of  attempting  to  outline  in  detail  the  terms  to  be 
insisted  upon  by  the  President  in  a  negotiation  with 
a  foreign  nation.  All  agreed  that  the  Senate  would 
be  within  its  constitutional  rights  in  passing  the 
resolution,  but  great  differences  of  opinion  ap- 
peared as  to  the  expediency  of  such  action.  The 
adoption  of  the  resolution  was  opposed  upon  the 

1  Amtals  of  Congress,  1805-180C,  p.  91. 


END    OF    THE    FORMATIVE    PERIOD  2()l 

ground  that  it  would  be  disrespectful  and  officious ; ' 
because  by  grouping  together  a  number  of  separate 
propositions,  each  one  of  which  might  be  difficult 
to  attain,  and  requesting  the  President  to  "demand 
and  insist"  upon  all  of  them,  it  gave  him  only  the 
alternati\'es  of  disregarding  the  advice  of  the  Senate 
or  of  failing  to  conclude  any  treaty  at  all ;  -  and 
because  the  adoption  of  such  a  resolution  would  de- 
crease the  responsibility  which  the  executive  ought 
to  feel  for  treaty-making/'     Other  members  urged 

'  Smith  of  \'ermoiit.     Annals  of  Congress,  1805-1806,  p.  95. 

2  Upon  this  point  Worthington  said,  "  It  is  not,  sir,  that  I  am 
opposed  to  demanding  or  insisting  on  our  rights;  but  it  is  because 
I  fear  the  resolution  taken  together  will  embarrass  the  executive 
in  negotiating  a  treaty  to  settle  our  differences.  .  .  .  With  .so  wide 
a  field  of  negotiation,  with  so  many  important  objects  to  accomplish, 
I  submit  it  to  the  good  sense  of  the  Senate,  whether  it  will  be  proper 
to  tie  up  the  hands  of  the  Executive  in  the  manner  contemplated 
in  the  resolution."  Ibid.,  p.  105.  Adair  emphasized  the  same 
point,  contrasting  the  general  nature  of  the  first  resolution  with  the 
specific  instructions  given  in  the  second,  and  declaring  that  the 
latter  went  too  far.  "It  is  circumscribing  the  powers  of  the  Presi- 
dent, and  tying  him  down  to  a  particular  j)oint.  It  is  making  that 
the  sine  qua  non,  the  basis  on  which  alone  he  is  to  treat;  at  least 
it  is  doing  this  so  far  as  an  opinion  of  the  Senate,  expressed  in  this 
way,  can  do  it.  .  .  .  It  has  been  well  observed  by  the  honorable 
member  from  Tennessee,  that  in  forming  connnercial  treaties  of 
this  kind,  there  will  be  various  points  to  consider,  and  that  it  may 
not  be  necessary  to  contend  for  strict  justice  in  every  punctilio; 
arrangements  or  treaties,  when  there  are  existing  differences  to  settle, 
must  always  be  a  bargain  of  compromise  and  forbearance;  in  one 
point  we  may  give  a  little,  that  we  may  gain  in  another.  So  it 
may  turn  out  in  settling  our  disputes  with  Great  Britain.  Why, 
then,  are  we  not  satisfied  with  expressing  our  opinion  on  the  great 
principle  of  right  and  leave  it  altogether  with  our  Chief  Magistrate 
to  enter  into  and  point  out  the  details?"  Annals  of  Congress,  1805- 
1806,  pp.  106-107. 

'  Bayard  stated  this  objection  as  follows:  "Mr.  rresidcnt,  if 
there  be  any  objection  to  the  resolution  now  before  us,  it  is  that  it 


202  THE    SENATE    AND    TREATIES 

the  adoption  of  the  resolution  on  the  ground  that, 
far  from  being  an  assumption  of  power  by  the 
Senate,  it  was  both  the  right  and  the  duty  of  that 
body  to  advise  the  President  in  this  way;  ^  on  the 
ground  that  it  would  impress  the  government  of 
Great  Britain  that  the  United  States  was  a  unit  in 
demanding  the  redress  asked  for ;  -^   and  because  by 

shelters  the  Executive  Government  from  that  responsibihty  as  to 
its  measures  which  properly  ought  to  attach  to  it.  The  duty  pre- 
scribed by  the  resolution  is  of  an  Executive  nature,  and  the 
President  is  charged  with  the  care  of  those  interests  for  which  the 
resolution  provides.  By  prescribing  a  course  of  conduct  to  the 
Executive,  we  release  that  branch  of  government  from  responsibility 
as  to  the  event,  and  take  it  upon  ourselves."     Ibid.,  pp.  101-102. 

1  Anderson  set  forth  this  position  in  the  following  words:  "Let 
us  examine  the  language  of  the  Constitution  upon  this  point.  The 
Constitution  says  that  the  President  shall  have  power,  by  and 
with  the  advice  and  consent  of  the  Senate,  to  make  treaties.  Now, 
I  contend  that  the  true  meaning  of  this  clause  is,  that  the  advice 
should  precede  the  making  of  the  treaty,  and  that  it  was  couched 
in  the  language  in  which  we  find  it,  for  the  purpose  of  obtaining 
the  opinion  of  the  Senate  as  to  the  principles  upon  which  the  treaty 
should  be  made."  He  then  went  on  to  cite  the  practice  during 
Washington's  time,  and  to  point  out  that  on  account  of  its  in- 
convenience this  mode  of  taking  the  ad\ace  of  the  Senate  had  since 
fallen  into  disuse.  "But,"  he  continued,  "the  latter  practise 
cannot,  or  ought  not,  be  considered  as  condemning  the  construction 
of  which  I  conceive  the  Constitution  is  fairly  susceptible.  Because 
the  construction  given  by  the  first  President  so  immediately  after 
the  adoption  of  the  Federal  Constitution  must  be  considered  as 
proceeding  from  the  true  sense  and  correct  opinion  which  he  then 
entertained  of  the  respective  riqhls  of  the  treaty-making  power." 
Ibid.,  pp.  96-97.  Mitchell  declared  that  "In  questions  touching 
our  foreign  relations,  the  Senators  are  declared  by  the  Supreme 
law  of  the  land  to  be  the  President's  counsellors.  In  urgent  and 
arduous  cases  it  was  not  only  allowable  for  them  to  exercise  this 
right,  but  it  was  their  duty  to  do  so."     Ibid.,  pp.  100-101. 

'^  Bayard  favored  the  passage  of  the  resolution  for  this  reason. 
He  said,  "For  n)y  part,  sir,  I  do  not  consider  the  resolution  as 
intended  in  any  degree  for  the  President,  but  as  designed  for  the 


END    OF    THE    FORMATIVE    PERIOD  203 

it  the  Senate  was  sharing  the  responsibihty  for  the 
course  of  the  executive,  and  giving  greater  weight 
to  the  President's  action.' 

These  arguments  inckide  several  of  the  chief 
reasons  which  have  always  been  advanced  for  and 
against  the  general  principle  involved.  It  cannot 
be  said,  however,  that  at  this  time  the  Senate  ex- 
pressed any  definite  opinion  upon  the  abstract 
merits  of  the  question.  The  resolution,  to  be  sure, 
was  adopted  by  a  large  majority,  but  this  ap- 
parently was  because  the  Republicans  believed  that 
it  would  strengthen  the  President  in  meeting  the 
crisis  of  our  relations  with  Great  Britain.  The  in- 
cident, therefore,  probably  proves  no  more  than 
that  the  Senate  beUeved  that,  constitutionally,  it 
possessed  authority  to  participate  in  treaty-making 
at  any  stage  in  the  process. 

Exactly  the  same  point  was  brought  to  an  issue 
soon  after  the  ratification  of  the  Treaty  of  Ghent. 
Immediately  after  the  Senate  had  accepted  the 
treaty,  Rufus  King  introduced  a  resolution  which 
provided  that  the  Senate  should  "recommend  to, 

British  Go\^ernmeiit.  ...  1  do  not  moan  that  we  should  be  con- 
sidered as  offering  an  empty  menace  to  tlie  British  cabinet,  but  a 
demonstration  of  the  union  of  different  branches  of  our  (Jovernment 
m  demanding  satisfaction  for  the  wrongs  done  us.  Foreign  Govern- 
ments calculate  much  on  our  divisions,  our  union  will  di.sappoint 
these  calculations."     Ibid.,  p.  102. 

1  Smith  of  Ohio  exclaimed,  "  What  is  the  object  of  the  resolution? 
It  is,  that  this  branch  of  the  legislature  shall  share  the  responsibility 
of  employing  means  to  execute  the  measure  proposed.  This  is 
magnaniincnis,  as  it  is  voluntary  on  the  part  of  the  Senate,  for 
in  adopting  the  resolution  we  attach  a  degree  of  responsibility  to 
ourselves  in  the  ctTects  to  be  produced."  Annals  of  Congress,  1805- 
1800,  p.  110. 


204  THE    SENATE    AND    TREATIES 

and  advise,  the  President"  to  pursue  negotiations 
with  Great  Britain  for  the  purpose  of  securing  six 
different  objects,  which  included  the  settlement  of 
all  British-American  differences,  and  the  recogni- 
tion of  principles  of  international  law  for  which  the 
United  States  had  contended  for  the  past  twenty- 
five  years  or  more.^  A  day  or  so  later,  after  King 
had  revised  and  extended  this  list,  it  was  referred 
by  the  Senate  to  the  committee  on  foreign  relations.- 

1  Sen.  Exec.  Jour.,  III.  7. 

-  Ibid.,  pp.  8-9.  Negotiations  were  to  be  entered  into  for  the 
purpose : 

"1.  Of  opening  and  establishing,  on  a  satisfactory  footing,  the 
navigation,  trade,  and  intercourse  between  the  United  States,  and 
His  Majesty's  colonies  in  the  West  Indies,  and  on  the  continent  of 
America. 

"2.  Of  re-opening  to  the  United  States  the  navigation  of  the 
river  St.  Lawrence,  between  their  northern  boundary  and  the  city 
of  Quebec;  of  obtaining  to  them  the  navigation  of  that  river  be- 
tween Quebec  and  the  ocean;  and  obtaining  for  the  trade  of  the 
United  States  in  that  quarter,  by  the  grant  of  a  suitable  equivalent, 
a  place  of  deposit  on  either  bank  of  the  St.  Lawrence,  within  the 
province  of  Lower  Canada. 

"3.  Of  abolishing  the  duties  imposed  on  goods  and  merchandise, 
exported  from  His  Majesty's  European  dominions  to  the  United 
States,  or  of  reserving  to  them  a  right  to  countervail  the  same, 
by  other  and  adequate  duties;  and  of  placing  the  vessels  of  both 
parties  on  the  same  footing,  in  respect  to  the  amount  of  drawl^acks. 

"4.  Of  agreeing  on  and  establishing  adequate  stipulations  for 
the  protection  of  American  seamen  from  British  impressment. 

"5.  Of  defining  the  cases  which  alone  shall  be  deemed  lawful 
blockades. 

"6.  Of  enumerating  the  articles  which  alone  shall  be  deemed 
contraband  of  war. 

"7.  Of  providing  suitable  regulations  for  the  prosecution  of 
neutral  trade,  with  the  colonies  of  the  enemy  of  either  party. 

"8.  Of  protecting  the  vessels  and  merchandi.se  of  each,  from 
loss  or  damage  by  reason  of  the  retaliatory  decrees  and  orders  of 
either  against  a  third  ))ower." 


END    OF    THE    FORMATIVE    PERIOD  205 

Had  Monroe  boon  successful  in  securing  the  agree- 
ment of  Great  Britain  to  the  eight  objects  in  this 
revised  list,  international  law  probably  would  have 
been  advanced  at  least  a  century,  and  Anglo- 
American  diplomacy  at  once  reduced  to  an  exchange 
of  com])limentary  communications  and  ornamental 
ambassadors.  In  reporting  upon  the  resolution, 
the  committee  on  foreign  relations  confined  their 
inquiries  to  the  considerations: 

1.  Whether  there  be  any  circumstances  which  call 
for  the  proposed  advice;   and 

2.  Whether  there  be  not  serious  objections  to  the  in- 
terference of  the  Senate  in  the  direction  of  foreign  re- 
lations.' 

In  relation  to  the  first  branch  of  the  inquiry,  it 
was  the  opinion  of  the  committee  that  the  executive 
had  already  exerted  every  possible  effort  to  ac- 
complish the  purposes  set  forth  in  the  resolution, 
and  that  the  advice  of  the  Senate  would  in  no  way 
aid  his  future  exertions.-  Upon  this  point  the 
report  states: 

Is  it  probable  that  the  proposed  advice  will  aid  his 
exertions?  It  can  not  be  presumed  that  he  entertains 
any  doubt  concerning  the  opinion  of  the  Senate  with  re- 
spect to  the  interests  comprised  in  the  motion,  and  the 
committee  do  not  perceive  how  the  expression  of  solicitude 
on  th(>  part  of  the  Senate  in  relation  to  the  objects  about 
which  no  difference  of  opinion  exists  can  afford  any  aid 
whatever.  Every  nation  in  making  contracts  is  supposed 
to  consult  its  own  interests;  and  it  is  believed  the  history 
of  the  world  does  not  furnish  an  example  of  one  party 
yielding  its  pretensions  in  conseciuence  of  the  disclosure 

^  Compilations  of  Reports,  Sen.  Com.  For.  Rels.,  VIII.  23-25. 

2  Ibid. 


206  THE    SENATE    AND    TREATIES 

of  unusual  solicitude  by  the  other  party.  Should,  there- 
fore, the  proposed  advice  be  adopted  and  made  pubhc, 
it  does  not  appear  that  any  beneficial  effect  would  be 
produced;  and  if  it  be  kept  secret,  as  is  usual  in  ex- 
ecutive business  (supposing  it  to  be  given  by  the  Senate 
as  a  branch  of  the  executive),  it  would  be  wholly  nugatory. ^ 

The  report  then  takes  up  the  second  proposition, 
as  follows: 

2.  The  committee  having  endeavored  to  show  that 
the  resolution  is  unnecessary,  they  proceed  to  submit 
some  positive  objections  to  its  adoption. 

If  it  be  true  that  the  success  of  negotiations  is  greatly 
influenced  by  time  and  accidental  circumstances,  the 
importance  to  the  negotiative  authority  of  acquiring 
regular  and  secret  intelligence  can  not  be  doubted.  The 
Senate  does  not  possess  the  means  of  acquiring  such  in- 
telligence. It  does  not  manage  the  correspondence  with 
our  ministers  abroad  nor  with  foreign  ministers  here. 
It  must  therefore,  in  general,  be  deficient  in  the  informa- 
tion most  essential  to  a  correct  decision. 

The  President  is  the  constitutional  representative  of 
the  United  States  with  regard  to  foreign  nations.  He 
manages  our  concerns  with  foreign  nations  and  must 
necessarily  be  most  competent  to  determine  when,  how, 
and  upon  what  subjects  negotiation  may  be  urged  with 
the  greatest  prospect  of  success.  For  his  conduct  he  is 
responsible  to  the  Constitution.  The  committee  con- 
sider this  responsibility  the  surest  pledge  for  the  faitliful 
discharge  of  his  duty.  They  think  the  interference  of 
the  Senate  in  the  direction  of  foreign  negotiations  cal- 
culated to  diminish  that  responsibility  and  thereby  to 
impair  the  best  security  for  the  national  safety.  The 
nature  of  transactions  with  foreign  nations,  moreover, 
requires  caution  and  unity  of  design,  and  their  success 
frequently  depends  on  secrecy  and  dispatch.  A  division 
of  opinion  between  the  members  of  the  Senate  in  debate 

1  Coinjnlation  of  Reports,  Sen.  Com.  For.  Rds.,  VIII.  24. 


END  OF  THE  FORMATIVE  PERIOD   •    207 

on  propositions  to  advise  the  Executive,  or  between  the 
Senate  and  Executive,  could  not  fail  to  give  the  nation 
with  whom  we  might  be  disposed  to  treat  the  most  decided 
advantages.  It  may  also  be  added  that  if  anv  benefits 
be  derived  from  the  division  of  the  legislature  into  two 
bodies,  the  more  separate  and  distinct  in  practice  the 
negotiating  and  treaty  ratifying  power  are  kept,  the 
more  safe  the  national  interests. 

The  committee  are  therefore  of  the  opinion  that  the 
resolution  ought  not  to  be  adopted.^ 

During  the  nine  weeks  that  it  was  before  the 
Senate  this  report,  the  resolution,  and  the  principle 
involved  were  thoroughly  discussed.-  Unfortu- 
nately the  meager  entries  in  the  executive  journal 
give  slight  indication  of  the  nature  of  the  debates. 
In  the  end,  however,  the  Federalists  refrained 
from  pressing  the  matter  to  a  vote,  and  upon  mo- 
tion of  King  it  was  ordered  that  consideration  of 
the  original  motion  and  the  report  of  the  committee 
on  foreign  relations  be  postponed  ''till  the  first 
day  of  June  next  "  —  a  non-existent  legislative 
day.^ 

The  able  statement,  made  in  this  report,  of  the 
disadvantages  inevitably  attendant  upon  a  regular 
and  formal  participation  by  the  Senate  in  the 
negotiation  of  treaties  cannot  have  failed  to  ex- 
ercise a  powerful  influence  in  permanently  establish- 
ing the  principle  which,  in  practice,  had  been  acted 
upon  for  more  than  twenty  years.  Certainly  since 
that  time  the  Senate  has  only  occasionally  sug- 
gested to  the  President  that  certain  negotiations 
be  undertaken,  or  that  certain  definite  provisions 

1  Compilalion  of  Reports,  Sen.  Com.  For.  Rels.,  VIII.  24-25. 

2  Sen.  Exec.  Jour.,  III.  33,  37,  38,  40.  '  Ibid.,  p.  49. 


208         •  THE    SENATE   AND   TREATIES 

be     sought     in     negotiations     originated     by     the 
executive.^ 

RATIFICATION    OF   THE    TREATY    OF    1816    AVITH 
SWEDEN   AND   NORWAY 

In  connection  with  the  discussion  of  Lord  Har- 
rowby's  treatment  of  the  proposal  of  the  United 
States  to  ratify  the  King-Hawkesbury  convention 
with  the  exception  of  the  fifth  article,  it  was  stated 
that,  for  a  long  time,  the  American  government 
frequently  accompanied  suggestions  for  such  con- 
ditional ratification  with  explanations  of  those 
characteristics  of  our  constitution  which  made  them 
necessary.^  No  better  example  of  this  practice 
can  be  cited  than  that  furnished  by  the  negotiations 
between  Sweden  with  reference  to  the  Senate  amend- 
ments to  the  treaty  of  1816  with  Sweden  and  Nor- 
way.^ Inasmuch  as  the  steps  taken  by  the  executive 
in  the  ratification  of  this  treaty  also  illustrate  the 
problems  which  may  be  imposed  by  the  action  of 
the   Senate   upon   the   President,   the   Secretary  of 

1  Crandall,  Treaties,  Their  Making  and  Enforcetnent  (2d  edition), 
pp.  73-74.  Here  are  cited  a  number  of  instances  in  which  such 
action  has  been  taken.  See  also  Lodge,  "The  Treaty-making  Powers 
of  the  Senate,"  for  an  interesting  discussion  of  the  question.  The 
occasions  upon  which  the  President  has  of  his  own  accord  asked  for 
the  formal  advice  of  the  Senate  as  a  preliminary  to  undertaking 
a  negotiation  are  fairly  numerous.  This,  however,  puts  the  matter 
on  an  entirely  different  footing  from  that  of  King's  resolution. 

-  See  p.  156  above. 

3  Very  little  has  been  published  concerning  this  treaty.  Lyman, 
Diplomacy  of  the  United  States,  I.  453,  note,  simply  mentions  its 
conclusion  and  amendment.  In  Ch.  XIIL  Lyman  gives  an  account 
of  our  diplomatic  relations  with  Sweden  down  to  1S28.  The  Treaty 
of  181G  was  negotiated  t(j  re])lace  the  treaty  of  1783. 


END    OF   THE    FORMATIVE    PERIOD  209 

State,  and  our  diplomatic  agents  abroad,  it  is 
proposed  to  trace  here  the  history  of  the  treaty 
subsequent  to  its  quahfied  acceptance  by  the  Senate.^ 

The  three  articles  rejected  by  the  Senate  gave 
the  United  States  certain  privileges  in  connection 
with  the  importation  of  West  Indian  goods  into 
Sweden  in  American  bottoms,  and  allowed  Sweden 
compensating  advantages  in  the  trade  between  the 
Baltic  nations  and  the  United  States. 

The  resolution  of  the  Senate  was  passed  in  Febru- 
ary, 1817,-  not  two  weeks  before  Monroe  was  to 
succeed  Madison  as  chief  executive.  The  out- 
going President  cA'idently  took  no  action  towards 
ratifying  the  amended  treaty,  and  it  was  one  of 
the  subjects  which  claimed  the  attention  of  the  new 
administration.  Apparently  Monroe  left  Wash- 
ington on  his  tour  through  the  eastern  and  western 
states  without  having  discussed  the  treaty  with 
Richard  Rush,  temporarily  in  charge  of  the  State 
Department.  The  matter  was  forced  upon  the 
attention    of    the    department,    however,    by    the 

'  Of  the  three  articles  rejected  by  the  Senate,  Article  3  provided 
that  all  goods,  the  growth,  produce,  or  manufacture  of  the  West 
Indies,  which  might  be  imported  into  Sweden  and  Norway  in  vessels 
of  those  states  might  also  be  imported  in  American  vessels  at  a 
rate  of  duty  not  more  than  ten  per  cent  greater  than  that  paid  by 
Swedish  or  Norwegian  ships.  Article  4  stipulated  reciprocal  terms 
with  reference  to  cargoes  originating  in  the  countries  surrounding 
the  Baltic,  and  imported  into  the  United  States  in  Swedish  or  Nor- 
wegian bottoms.  Mixed  cargoes  were  especially  provided  for 
Article  6  provided  a  means  of  determining  what  goods  were  to  be 
considered  as  having  been  produced  in  the  respective  states  These 
articles  appear  in  brackets  in  the  treaty  as  printed  in  Convcnlions 
and  Treaties,  II.  1742,  et  seq. 
*  Sen.  Exec.  Jour.,  III.  78. 


210  THE   SENATE   AND   TREATIES 

necessity  of  formulating  instructions  for  Jonathan 
Russell,  who  was  in  the  United  States  on  leave,  and 
at  this  time  was  preparing  to  return  to  his  post.'^ 

In  a  letter  written  on  June  25,  Rush  took  the 
matter  up  with  the  President  and  discussed  at 
length  the  courses  of  action  that  lay  open  to  the 
executive.     He  stated: 

The  new  treaty  has  been  adopted  with  the  exception 
of  the  third,  fourth,  and  sixth  articles.  The  two  first 
relate  to  the  West  Indies  and  Baltic  trade,  and  settle  also 
the  rule  of  paying  duties  on  a  mixed  cargo.  The  sixth 
barely  prescribes  the  evidence  which  is  to  stamp  the 
reahty  of  what  purports  to  be  the  articles  of  the  growth, 
produce  or   manufacture   of   each    country  respectively. 

As  to  these  three  articles,  the  necessity  for  any  specu- 
lative inquiry  or  opinion  upon  their  nature  or  probable 
operation,  is,  I  presume,  at  an  end.  The  Senate  has 
seen  fit  to  reject  them. 

The  question  then  is,  what  do  we  expect,  or  what  is 
it  to  our  interest,  or  our  intention,  to  ask? 

Are  we  willing  to  take  the  treaty  stripped  of  these 
three   articles?     Upon   this   head   I   need   your   opinion. 

1  On  July  20  Rush  wrote  to  Monroe  saying  that  Russell  had 
requested  that  his  instructions  be  sent  to  Boston  by  the  fifteenth, 
but  evidently  had  not  been  there  himself  at  that  time.  Rush 
wrote,  "I  hope  that  my  letter  of  the  25th  of  June  (I  think  that  was 
the  date)  may  place  this  subject  before  you  with  sufficient  fullness 
to  enable  you  to  say  a  word  to  me,  notwithstanding  the  din  that 
surrounds  you.  If  left  to  myself,  I  should  simply  instruct  Mr. 
Russell  to  have  the  treaty  adopted  (should  Sweden  consent),  with 
the  mere  exception  of  the  three  articles,  making  the  jiroper  explana- 
tion to  that  court  touching  their  exclusion.  But  this  is  a  step  I 
cannot  take  without  your  sanction,  never  having  heard  the  least 
opinion  from  you  relative  to  the  treaty."  Rush  to  Monroe,  July  20, 
1807.  Monroe  Papers,  Division  of  Manuscripts,  Library  of  Con- 
gress, Vol.  XVI. 


END   OF   THE    FORMATIVE    PERIOD  211 

If  \vc  arc  the  insti-uctioiis  will  come  within  the  iian-owost 
compass. 

But  will  Sweden  take  it  stiii)iKHl  of  them?  I  eannot 
see  why  not,  for  to  be  frank,  had  they  stootl,  it  seems  to 
me  they  would  have  been  most  to  our  advantage.  Mr. 
Russell  may  be  better  able  than  any  of  us  to  answer  the 
question. 

If  Sweden  will  not  thus  take  it,  does  the  whole  treaty 
fall  to  the  ground,  or  have  we  any  modifications  to  propose, 
and  what  are  they?  ^ 

The  President's  solution  of  the  problem  appears 
in  the  instructions  which  Rush  drew  up  and  for- 
warded to  Russell  under  date  of  August  14.  After 
referring  to  the  rejection  of  the  three  articles.  Rush 
proceeded : 

The  treaty  being  thus  altered  by  th(^  government, 
cannot  longer  be  regarded  as  the  same  instrument  which 
was  assented  to  by  the  Government  of  Sweden.  It  is 
proper,  therefore,  that  it  should  again  be  submitted  to 
that  Government  with  a  view  to  its  approbation  in  the 
shape  which  it  now  presents.  In  the  event  of  its  being 
approved,  a  new  ratification,  at  Stockholm,  will,  of  course, 
become  necessary. 

In  apprizing  the  Government  of  Sweden  of  the  ex- 
clusion by  this  Government  of  the  articles  in  question 
after  the}'  had  been  regularly  agreed  to  by  a  minister 
acting  with  full  powers  on  its  behalf,  a  task,  will  devolve 
upon  you  which  The  President  feels  a  confidence  will  be 
performed  with  the  best  discretion  and  effect  w^hich  such 
a  case  will  allow.  The  true  explanation  must  be  sought 
in  the  principles  and  structure  of  the  executive  branch 
of  our  Government.  You  are  well  informed  upon  this 
subject,  and  will  take  care  to  impress  the  just  views 
which  belong  to  it  upon  the  Court  of  Sweden.  You  will 
cause  it  to  l)e  distinctly  understood,  that  it  is  a  funda- 

'  Monroe  Papers,  Division  of  Manuscripts,  Library  of  Congress, 
XVI. 


212  THE    SENATE    AND    TREATIES 

mental  law  of  our  system,  that  every  treaty  made  by  a 
minister  of  the  United  States,  with  whatever  exact  ad- 
herejice  to  his  powers  and  instructions  and  whatever 
the  nature  of  its  provisions,  is  still  liable,  when  presented 
to  the  Senate  for  ratification,  to  be  modified,  or  even  to 
be  totally  rejected.  There  are  already  precedents  in 
our  history  of  a  similar  exercise  of  this  authority.  It 
will  be  famiUar  to  your  recollection,  that  the  Treaty  of 
Amity,  Commerce  and  Navigation  between  the  United 
States  and  Great  Britain,  entered  into  at  London  on  the 
19th  of  November,  1794,  and  signed  by  the  two  Pleni- 
potentiaries, Mr.  Jay  and  Lord  Grenville,  had  part  of 
the  12th  article  relating  to  the  West  Lidia  Trade  after- 
wards expunged  by  this  Government,  to  which  Great 
Britain  subsequently  assented.  Of  this  precedent  you 
will  naturally  make  the  fit  use.  Above,  all,  you  will 
give  the  explicit  assurance,^  that  the  rejection  of  the 
articles  must  not  be  interpretated  into  the  least  absence 
of  consideration  or  respect  for  the  Government  of  Sweden. 
Any  such  inference,  as  it  would  be  contrary  to  the  fact 
would  be  painful  to  The  President;  and  he  cherishes  the 
confident  hope  that  it  will  not  be  drawn.  On  this  head 
it  is  The  President's  particular  desire,  that  your  assurances 
should  take  a  character  of  utmost  conciliation,  as  truly 
conforming  to  the  spirit  by  which  alone  this  government 
is  animated  towards  the  Crown-Prince. 

It  may  be,  that  Sweden  will  not  accept  the  Treaty, 
diminished  as  it  now  is  from  its  former  state,  under  the 
mere  repetition  of  the  ceremony  of  ratification.  In  such 
an  event  it  will  be  considered  as  null,  and  you  are  em- 
powered to  open  the  negotiation  anew.  In  forming  an- 
other Treaty,  the  instructions  heretofore  given  you  in 
the  letter  from  the  Departnunit  of  :May  the  20th,  1816, 
will  be  your  guide.  It  is  not  seen  that  any  advantage 
would  flow  from  this  course.  If  pursued,  it  must  lead, 
substantially,  to  the  same  result.     Yet  it  will  be  at  your 

'  Xot  unnaturally,  the  Senate  amendments  to  .the  King-Hawkes- 
bury  convention  were  not  mentioned. 


END    OF   THE    FORMATIVE    PERIOD  213 

option  even  to  offer  it  in  the  first  instance  if  vou  are  led 
to  think  that  it  woukl  be  [ireferrecl  by  Sweden,  and 
much  more  if  there  is  reason  to  suppose  that  the  other 
cours(>  would  not  be  acceded  to.  It  inij^ht  thus  prevent 
the  cUlenuna  of  a  refusal. ^ 

These  instructions  are  a  revelation  of  the  careful, 
tentative  manner  in  which  the  United  States  in 
1816  was  attempting  to  adjust  her  diplomatic  in- 
tercourse to  the  necessities  of  her  constitution. 
The  treaty  not  only  had  been  signed  by  the  Swedish 
plenipotentiary,  but  actually  had  been  ratified  by 
the  King.  The  greatest  care,  therefore  was  to  be 
taken  to  assure  Sweden  that  the  rejection  of  three 
of  the  articles  which  had  been  agreed  upon  did  not 
imply  any  lack  of  respect  for  the  Swedish  govern- 
ment. Evidently  it  was  thought  entirely  possible 
that  Sweden  would  follow  the  example  of  Great 
Britain  and  decline  to  acquiesce  in  the  amendment 
of  the  treaty.  The  instructions  show  clearly  that 
the  government  felt  that  in  the  circumstances  such 
action  could  not  be  justly  resented  by  the  United 
States,  and  authorize  Russell  to  accept  such  a  de- 
cision and  to  proceed  with  the  negotiation  of  a  new 
treaty.  The  suggestion  that  it  might  be  inadvisable 
to  request  Sweden  to  accept  the  nmtilated  treaty 
is  evidence  that  the  American  government  realized 
that  the  proposal  was  not  in  accordance  with  the 
recognized  practice  of  international  intercourse. 

Upon  his  return  to  Stockholm  Russell  at  once 
proceeded  to  explain  the  situation  to  the  Swedish 

»  Richard  Rush  to  Jonathan  Russell,  August  14,  1817.  MS. 
State  Department,  Bureau  Index  and  Archives,  U.  S.  Ministers, 
Instructions,  N'lII.  14.5,  el  seq. 


214  THE    SENATE    AND    TREATIES 

government,  and  in  December,  1817,  he  reported 
to  the  Secretary  of  State  his  first  conversations  with 
Count  d'Engestrom,  the  Swedish  minister  of  foreign 
affairs.  These  led  him  to  beUeve  that  the  treaty 
would  "eventually  be  accepted  with  the  retrench- 
ment niade  by  the  Senate."  ^  Early  in  January  he 
submitted  to  Count  d'Engestrom  a  written  memoir 
which  officially  set  forth  the  facts  which  he  had 
been  instructed  to  lay  before  the  Swedish  court. - 
After  a  brief  correspondence  upon  the  points  at 
issue,^  the  Swedish  minister  decided  that  the  changes 
made  by  the  United  States  Senate  were  neither 
subversive  to  the  interests  of  his  government  nor 
derogatory  to  its  honor,  and  therefore,  that  the 
treaty  might  be  accepted  as  amended.  His  formal 
notification  to  Russell  of  this  decision  sets  forth  the 
view  of  the  Swedish  government  in  the  matter,  as 
follows : 

It  is  by  the  express  order  of  the  King,  his  August 
Sovereign,  that  the  undersigned  has  now  the  honor  to 
declare  to  Mr.  Russell,  that  the  three  articles  which  the 

1  Russell  to  Adams,  December  29,  1817,  MS.  State  Depart- 
ment Bureau  of  Indexes  and  Archives,  Stockholm  Legation,  J. 
Russell,  1812-1813,  Vol.  I. 

2  Russell  to  d'Engestrom,  January  4,  1818,  MS.  State  Depart- 
ment, Stockholm  Legation,  J.  Russell,  1812-1813,  Vol.  I. 

'  Under  date  of  January  22  Russell  wrote  to  Adams,  "In  a 
conversation  with  Count  d'Engestrom,  on  the  3d  instant,  at  which 
Count  Marnet,  who  also  signed  the  treaty,  was  present,  I  was  given 
very  distinctly  to  understand  that  the  treaty,  as  modified  by  the 
Senate,  would  be  accepted  by  this  Government.  I  Avas  desired, 
however,  to  give  a  more  formal  shape  to  the  explanations  which 
I  had  offered  on  the  subject  that  they  might  be  duly  submitted  to 
the  consideration  of  the  Prince  Royal  and  of  the  Council  of  State." 
Russell  to  d'Engestrom,  January  22,  1818,  Ibid.  See  also  same  to 
same,  Januarv  12,  ISIS,  Ibid. 


END    OF    THE    FORMATIVE    PERIOD  215 

Sonato  of  the  I'nitod  States  has  l)oliovo(l  ought  not  to  bo 
adopted,  being  of  no  particular  interest  for  Sweden, 
and  having  been  proposed  only  in  the  belief  that  they 
would  be  agreeable  to  the  American  Government,  the 
King  does  not  place  any  importance  in  maintaining  them. 
His  Majesty  accepts  and  ratifies,  consequently,  the 
treaty  as  it  has  been  ratified  by  the  Senate,  that  is  to  say, 
with  the  exclusion  of  Articles  III,  IV,  and  VI,  and  con- 
sequently he  has  oixlered  the  undersigned  to  proceed  to 
the  exchange  of  ratifications  to  be  carried  out  in  the  man- 
ner which  you  suggest,  as  soon  as  Mr.  Russell  shall  have 
i-eceived  the  ratification  of  the  United  States  duly  signed 
by  the  authorities  of  that  country.^ 

Russell  agreed  that  the  exchange  of  ratifications 
should  take  place  at  Stockholm,-  and  exchange  was 
effected  on  September  25,  1818.'^ 

1  Count  d'Engestrom  to  Russell,  January  24,  1818,  MS.  State 
Department,  Stockholm  Legation,  J.  Russell,    1812-1813,  Vol.   I. 

2  The  reasonable  nature  of  this  arrangement  is  recognized  by  the 
American  negotiator  in  the  following  excerpt  from  a  report  to  the 
State  Department:  "You  will  perceive  that,  as  I  suggested  in  my 
letter  of  the  29th  ulto,  the  exchange  of  the  ratifications  is  expected 
to  take  place  here.  I  could  not  verj^  strenuously  object  to  this 
course  after  having  been  reminded  that  one  ratification,  dul}'  exe- 
cuted by  this  Government  had  already  been  sent  to  Washington 
and  returned  hither  without  effect."  Rassell  to  Adams,  Januarj'  26, 
1818.    IhU. 

3  Treaties  and  Conventions  Between  the  United  States  and  Other 
Powers,  II.  1742. 


BIBLIOGRAPHY 

BIBLIOGRAPHICAL    AIDS 

Channing,  Hart,  and  Turner,  Guide  to  the  Study  and  Reading  of 
American  History  (^ revised  and  augmented  edition,  Boston,  1912). 
Useful  in  solving  bibliographical  problems. 

A.  B.  Hart,  Manual  of  Ameincan  History,  Diplomacy,  and  Govern- 
ment (Cambridge,  1908).  This  manual  is  useful  in  the  handling 
of  secondary  material,  particularly  on  account  of  its  references  to 
specific  topics. 

J.  N.  Larned,  editor.  The  Literature  of  American  History:  a 
Bibliographical  Guide  (Boston,  1902).  "A  bibliographical  guide  in 
which  the  scope,  character,  and  comparative  worth  of  books  in 
selected  lists  are  set  forth  in  brief  notes  by  critics  of  authority." 
This  work  is  of  greater  usefulness  in  the  evaluation  than  in  the 
location  of  material.  There  is  no  separate  treatment  of  anj-  of  the 
subjects  directly  under  consideration. 

J.  B.  Moore,  Digest  of  International  Law  (Washington,  1906, 
8  vols.)  contains  a  multitude  of  suggestive  references  both  to  second- 
ary and  source  material  bearing  upon  many  of  the  topics  under 
consideration.  It  is  an  invaluable  bibliographical  aid  in  this  field. 
A.  B.  Hart,  The  Foundations  of  American  Foreign  Policy  (New 
York,  1901).  The  concluding  chapter,  a  "Brief  Bibliography  of 
American  Diplomacy,"  so  far  as  it  goes,  is  useful  in  estimating  the 
worth  of  secondary  works.  The  arrangement  is  topical  and  each 
book  cited  is  briefly  described  and  weighed. 

Justin  Winsor,  Xarrative  and  Critical  History  of  America  (Boston. 
1886-1889,  8  vols.).  In  Vol.  VII,  pp.  461-562,  is  given  an  estimate 
of  earlier  works  on  the  wars  of  the  I'nited  States,  which  is  of  value. 
Vol.  \IU,  pp.  413-478  is  devoted  to  a  description  of  the  manuscript 
sources  of  American  History,  followed  by  a  description  of  printed 
authorities,  1776-1850.  The  notes  to  Dr.  Angell's  article.  The 
Diplomacy  of  the  United  States,  Chapter  VII,  Vol.  VII,  are  critical 
and  suggestive. 

J.  S.  Bassett,  The  Federalist  System. 

217 


218  BIBLIOGRAPHY 

Edward  Channing,  The  J effcrsoniaii  Sijstem.  (The  American 
Nation:  A  Historj^  Vols.  XII  and  XIII,  New  York,  1906.)  The 
critical  essays  on  authorities  which  form  the  concluding  chapters 
of  these  two  works  are  useful  in  a  study  of  any  subject  within  the 
period  covered. 

Ben  Perley  Poore,  Descriptive  Catalogue  of  the  Government  Publi- 
cations of  the  United  States,  September  5, 177 4.-M arch  4, 1881  (Wash- 
ington, 1885).  Although  practically  superseded  by  more  recent 
guides,  Poore  is  still  useful  in  the  location  of  material  to  be  found 
in  the  public  documents.  The  work  is  in  two  parts,  the  first  part 
being  a  descriptive  catalogue  chronologically  arranged,  and  the 
second  an  index,  alphabetically  arranged. 

Elfrida  Everhart,  Hnnflhonk  of  United  States  Public  Documeu^ 
(Minneapohs,  1910)  is  a  well-arranged  work  which  is  of  great 
assistance  in  mastering  the  mysteries  of  government  publications. 
Part  1  deals  with  Congressional  Documents,  Part  2  with  Dejiart- 
mental  Publications,  and  Part  3  with  Publications  of  the  Independent 
Publishing  Offices  of  the  Government. 

U.  S.,  Superintendent  of  Documents,  compiler.  Check  List  o[ 
United  States  Public  Documents,  1789-1909^  (Washington,  1911. 
3d  Edition,  revised  and  enlarged.)  The  arrangement  is  in  accord- 
ance with  a  complicated,  but  uniform  system  based  upon  the  or- 
ganization of  the  government.  This  is  the  most  valuable  aid  in 
finding  documentary  material;  it  is  the  key  to  the  serial  numbers. 

T.  H.  McKee,  compiler,  {Indexes  to)  The  Reports  of  the  Select 
and  Special  Committees,  United  States  Senate  (Washington,  1887), 
barely  touches  the  period  treated  in  this  study,  as  it  commences 
with  the  year  1815. 

Van  Tyne  and  Leland,  (Juide-. to  the  Archives  of  the  Government  of  _ 
thfiUnitpd  Slfilcf^  '"'  Wc{]hin(itO"  (Washington,  1907,  revised  edition 
by  W.  G.  Leland)  is  a  u.seful  guide  to  the  archives  of  the   State 
Department  and  of  the  Senate. 

A.  C.  McLaughlin,  Report  on  the  Diplomatic  Archives  of  the 
Department  of  State,  1789-1840  (Washington,  1906).  This  is  an 
invaluable  guide  to  the  student  who  wishes  to  use  the  material  in 
these  archives.  It  estimates  the  proportion  of  material  in  the 
archives  which  has  not  been  printed  to  that  which  has  been;  it 
describes  and  analyzes  the  various  series  of  documents  and  the 
system  of  indexing  for  each  one;  it  points  out  some  of  the  difficulties 
in  the  use  of  the  diplomatic  correspondence  that  are  bound  to  be 
encountered  by  the  student  who  is  not  tlioroiiglily  familiar  with  the 
files  of  the  department. 


BIBLIOGRAPHY  219 

MANUSCRIPT    SOURCES 

III  the  Bureau  of  Rolls  and  Library  are  to  be  found  the  originals 
of  the  treaties  of  the  United  States.  Each  treaty  is  filed  in  a  large 
manila  envelope  containing  also  the  official  statement  of  the  action 
taken  by  the  Senate  with  reference  to  the  treaty.  This  is  in  the 
form  of  a  transcript  of  the  Senate  resolution  authenticated  by  the 
signature  of  the  clerk  of  the  Senate.  Besides  this  document,  which 
is  missing  in  only  a  few  cases,  other  interesting  material  throwing 
light  on  the  negotiation  of  a  treaty,  its  reception  by  the  Department, 
its  ratification,  the  exchange  of  ratifications,  or  some  other  pha.se 
of  its  history  frequently  has  been  filed.  To  each  treaty  is  attached 
the  ratification  and  the  proclamation  by  the  President,  authenticated 
by  the  Great  Seal  of  the  Ignited  States  and  attested  by  the  signature 
of  the  Secretary  of  State.  The  ratification  precedes  the  treaty 
itself,  and  in  case  of  amendment  by  the  Senate  the  amendments 
usually  are  incorporated  in  the  ratification  rather  than  in  the  treaty. 
The  proclamation  is  bound  after  the  treaty.  The  treaties  on  file 
are  divided  into  two  series,  the  first  comprising  the  perfected,  and 
the  second  the  unperfected  instruments.  Those  in  each  group  are 
arranged  alphabetically  by  countries,  and  chronologically  under 
each  country.  The  perfected  series  are  numbered  from  1  to  about 
600;  the  unperfected  from  A  to  Z,  and  then  from  Al  to  Zl,  and 
so  on. 

The  diplomatic  correspondence  of  the  United  Stat«s  is  filed  in 
the  Bureau  of  Indexes  and  Archives.  The  reader  is  referred  to 
A.  C.  McLaughlin's  report  on  these  archives  for  a  description  of 
this  correspondence.'  Most  of  the  material  bearing  directly  upon 
the  subject  in  hand  during  the  period  under  consideration  seems 
to  have  been  published,  in  one  form  or  another.  The  principal 
value  of  this  correspondence  in  studying  the  action  of  the  Senate 
upon  treaties  lies  in  the  fact  that  very  frequently  such  action  is 
explained  by  the  Department  in  its  instructions  to  the  American 
envoy  accredited  to  the  other  party  to  the  treaty;  or  the  possibilities 
of  Senate  action  of  a  certain  sort  may  be  discu-ssed;  or  the  course 
generally  followed  by  that  body  in  given  circumstances  may  be 
set  forth.  Frequently  such  information  is  unobtainable  elsewhere. 
In  addition,  the  effect  of  Senate  action  upon  the  government  of  the 
other  party  to  the  treaty  may  be  most  directly  traced  in  this  cor- 
respondence. 

'  McLaughlin,  Report  on  the  Diplomatic  Archives  of  the  Depart- 
menl  of  State,  1789-1840  (Washington,  190ti). 


220  BIBLIOGRAPHY 

For  the  early  period  the  executive  files  of  the  Senate  contain  little 
material  that  is  not  in  print.  The  file  room  is  on  the  top  floor  of  the 
Senate  wing  and  the  records  are  filed  in  small  steel  cases  placed  in 
a  filing  cabinet.  The  documents  are  uncatalogued  and  unindexed. 
Those  pertaining  to  each  .session  are  folded  into  small  compass, 
tied  with  tape,  and  forced  into  the  case  in  which  they  belong.  Ap- 
parently Congress  has  not  seen  fit  to  take  adequate  measures  for 
their  preservation,  or  for  rendering  them  available  for  u.se.  In 
addition  to  material  stored  in  the  manner  just  described  there  are 
numerous  chests  containing  all  manner  of  documents  relating  to 
the  executive  business  of  the  Senate,  the  condition  of  which  is  such 
that  its  use  would  be  a  Herculean  task. 

The  files  of  the  Senate  committee  on  Foreign  Relations  are 
conspicuous  by  their  almost  total  absence.  For  the  brief  time  that 
the  committee  existed  during  the  period  under  consideration  there 
are  none  at  all,  the  student  being  compelled  to  resort  to  the  official 
reports  of  the  committee,  and  the  personal  correspondence  of  its 
members.  It  is  interesting  to  note,  however,  that  until  recently 
the  records  of  this  great  committee  have  received  little  or  no  atten- 
tion from  any  one.  Until  the  time  of  Hawkins  Taylor  no  oflRcial 
record  was  kept  of  the  meetings,  although  for  the  last  twenty  years 
a  brief  journal  of  the  proceedings  has  been  preserved.  Much  of 
the  most  important  business  done  by  the  committee,  however,  is 
transacted  by  correspondence  between  the  chairman  and  the  Secre- 
tary of  State.  From  time  immemorial  each  successive  chairman 
seems  to  have  regarded  this  correspondence  as  being  his  own  prop- 
erty, and  has. carried  away  such  letters  among  the  files  of  his  personal 
correspondence.  What  has  been  left  has  been  turned  over  to  the 
executive  clerk,  who  has  stored  it  with  other  documents  in  the 
attic  of  the  Capitol.  No  attempt  has  been  made  to  make  this 
material  available  for  use,  either  by  statesmen  or  by  historical 
investigators.' 

'  This  information  was  derived  from  a  personal  examination  of 
such  files  as  the  committee  possesses,  and  from  conversations  with 
the  late  Senator  Stone  and  Senators  Shivelcy,  Smith,  and  IMcCum- 
ber,  of  the  Committee  on  P'oreign  Relations,  with  the  clerk  of  the 
committee,  and  with  the  executive  clerk  of  the  Senate.  Pre- 
viously to  December  20,  1794,  the  Senate  sat  with  closed  doors 
in  legislative  as  well  as  in  executive  session.  The  result  is  that  for 
the  years  previous  to  that  date  the  Annals  contain  no  more  than  a 
journal  of  the  proceedings.  P'or  the  early  sessions  parts  of  records 
of  some  executive  sessions  are  included.     These  are  dangerous  to 


BIBLIOGRAPHY  221 


PvBLic  Documents 

Jovnial  of  the  Executive  Proceedings  of  the  Senate  of  the  United 
Slates  of  Avicricn  (Washington,  1828,  3  vols.).  These  three  volumes 
cover  the  period  from  the  commencement  of  the  first,  to  the  ter- 
mination of  the  nineteenth  Congress,  —  1798  to  1829.  They  are 
journals  only,  and  contain  the  record  of  the  proceedings  of  the 
Senate  in  executive  sessions  and  in  a  few  confidential  sessions. 
Vol.  I  covers  the  period  from  1789  to  1805,  Vol.  II  from  IS0.5  to 
1815,  and  Vol.  Ill  from  1815  to  1829. 

Annals  of  the  Congress  of  the  United  States  (Washington,  1834- 
1856,  42  vols.).  The  period  under  consideration  is  covered  by 
volumes  1  to  35.  The  several  volumes  are  not  numbered  serially, 
but  are  identified  by  the  name  of  the  congress,  sometimes  of  the 
session,  and  always  by  the  period  of  time  covered.  Throughout 
the  period  the  reports  of  the  debates  are  incomplete  and  fragmentary. 
Many  of  the  longer,  set  speeches  were  revised  by  their  authors  for 
publication,  or  if  previously  prepared  were  printed  as  written. 
But  the  day  to  day  debates  are  far  from  being  fully  reproduced. 

Walter  Lowrie  and  Matthew  St.  Clair  Clarke,  editors,  American 
Slate  Papers;  Documents,  Legislative  and  Executive,  of  the  Congress 
of  the  United  States;  Class  I,  Foreign  Relations  (Washington,  1832- 
1859.  Folio,  6  vols.,  1789-1828).  In  these  volumes  are  printed 
the  annual  messages  of  the  Presidents,  their  special  messages  upon 
foreign  relations,  and,  so  far  as  they  were  available,  the  corre- 
spondence and  other  papers  on  the  subject  submitted  by  them  to 
Congress  or  to  either  house  thereof;  also  many  reports  of  Senate 
and  House  Committees,  and  miscellaneous  documents.  The 
documents  are  arranged  chronologically  as  transmitted  to  congress, 
except  the  annual  messages,  which  appear  in  a  chronological  series 
(for  the  period  178^)-1815)  in  Volume  I.  It  should  be  noted,  that 
the  documents  which  appear  in  this  collection  do  not  comprise  all 
of  the  diplomatic  correspondence  for  the  period  covered.  Professor 
McLaughlin  estimates  that  not  more  than  one-fourth  of  the  material 
in  the  archives  of  the  Department  of  State  has  been  printed  here. 
And  he  adds,  "The  materials  printed  in  the  State  Papers  very  often 
appear  only  in  extract.     It  is  unnecessary  to  say  that,  so  far  as  their 

use,  however,  as  the  account  of  the  proceedings  for  any  one  day  is 
apt  to  be  incomplete,  and  in  some  cases  no  notice  whatever  is  taken 
of  executive  business.  In  either  case  there  is  nothing  to  indicate 
the  onoission. 


222  BIBLIOGRAPHY 

importance  for  diplomatic  history  is  concerned,  the  omitted  portions 
are  not  the  least  interesting." 

Lowrie  and  Clarke,  editors,  American  State  Papers:  Class  II, 
Indian  Affairs.  In  this  series  of  volumes  the  same  thing  is  done 
for  the  documents  illustrating  the  relations  of  the  United  States 
with  Indian  tribes  as  is  done  in  Class  I  for  those  pertaining  to  the 
foreign  relations  of  the  nation  during  this  period. 

Hawkins  Taylor,  compiler,  Compilation  of  Reports  of  Committee  on 
Foreign  Relations,  United  States  Senate,  1789-1901  (Washington, 
1901,  8  vols.)  The  subjects  treated  in  the  several  volumes  are 
arranged  as  follows: 

I.   Claims  of  the  United  States  against  foreign  governments. 
II.   The  same. 

III.  The   same;     claims   of   United   States   citizens   against   the 

United  States;  of  citizens  of  foreign  governments  against 
the  United  States;  of  consular  and  diplomatic  officers  of 
the  United  States  against  the  United  States  for  reimburse- 
ment and  extra  pay. 

IV.  Mediterranean    Commerce;    nominations;    authorizations   to 

accept    decorations;     international    exhibitions;     miscel- 
laneous matters. 
V.   Tariffs  of  the  several  countries;    boundary  and  fishery  dis- 
putes. 
VI.    Diplomatic  Relations  with  foreign  nations;  Hawaiian  Islands. 
VII.    Diplomatic  relations  with  foreign  nations;   affairs  in  Cuba. 
MIL    Treaties  and  legislation  respecting  them;  general  index. 

It  is  difficult  for  one  who  has  been  compelled  to  use  this  collection 
to  speak  of  it  in  terms  marked  by  the  restraint  imposed  by  the 
amenities  of  scholarship.  Particularly  for  the  early  period,  the 
years  previous  to  1816,  the  work  can  only  be  referred  to  as  a  hodge- 
podge of  reports  selected  accordmg  to  no  apparent  rules  from  the 
Executive  Journals,  the  Annals  of  Congress,  and  Congressional 
documents,  and  arranged  upon  a  system  which  can  be  intelligible 
to  no  one  but  the  compiler.  Pre\aous  to  1816  no  Senate  standing 
committee  on  foreign  relations  existed.  Yet  the  compiler  of  this 
work  felt  free  to  refer  to  any  committee  which  made  a  report  on  a 
subject  which  pertained  to  foreign  relations  as  "the  Committee  on 
Foreign  Relations,"  without  giving  any  indication  that  he  was 
speaking  of  a  select  committee  which  perhaps  had  an  existence  of 
twenty-four  hours  only,  and  which  never  had  been  called  "the 
Committee  on  Foreign  Relations"  by  any  one  but  himself.    Further, 


BIBLIOGRAPHY  223 

while  he  selected  for  jirinting  many  of  the  committee  reports  upon 
matters  concerning  foreign  relations,  other  reports  he  ignorcil 
entirely.  And,  finally,  many  of  the  reports  which  appear  are  un- 
accompanied by  any  citations  to  indicate  the  source  from  which 
they  were  taken,  nor  is  there  any  general  explanation  which  covers 
this  point.  On  the  whole,  this  ponderous  collection  has  been 
rendered  as  nearly  useless  to  the  scholar  as  such  an  imposing  mass 
of  historical  material  well  can  be. 

J.  H.  Haswell,  compiler,  Treaties  and  Conventions  Concliuled 
Between  the  United  States  of  America  and  Other  Powers  Since  July  4, 
1776.  Containing  notes,  with  references  to  negotiations  preceding  the 
several  treaties,  to  the  Executive,  Legislative,  or  Judicial  construction 
of  them,  and  the  causes  of  the  abrogation  of  sotne  of  them:  a  chrono- 
logical list  of  treaties;  and  an  analytical  index  (Washington,  1889). 

The  reader  is  referred  to  the  preface  of  this  volume  for  a  descrip- 
tion of  previous  editions  of  the  treaties  of  the  United  States. 

W.  H.  Malloy,  compiler.  Treaties,  Conventions,  International 
Acts,  Protocols  aiui  Agreements  between  the  United  States  of  America 
and  Other  Powers,  1776-1909  (Washington,  1910.  2  vols.  vSen.  Ex. 
Doc,  No.  357,  (31st  Congress,  2d  Session).  Also  Supplement  to 
above.  Sen.  Doc.  1063,  62d  Congress,  3d  Sess.,  Garfield  Charles 
compiler  (Washington,  1913). 

This  collection  is  better  edited  than  is  the  Haswell  edition 
but  unfortunately  Da\^s's  notes  do  not  appear  in  this  edition. 

J.  D.  Richardson.  A  Compilation  of  the  Messages  and  Papers  of 
the  Presidents,   1789-1902   (Washington,   1905). 

Senate  Manual  (Washington,  1918).  In  addition  to  the  present 
standing  rules  and  orders  of  the  Senate,  the  manual  includes  Jeffer- 
son's Manual,  and  other  useful  material. 


WRITINGS    AND    BIOGRAPHIES    OF    STATESMEN 

With  the  exception  of  the  Monroe  manuscripts,  in  the  Division 
of  Manuscripts,  Library  of  Congress,  there  Ls  little,  if  any,  unpub- 
lished material  of  this  sort  which  bears  upon  the  subject  during  the 
period  under  consideration.  In  the  published  correspondence, 
memoirs,  and  biographies  of  the  statesmen  concerned  a  considerable 
amount  of  information  is  to  be  gleaned.  It  is  apparent,  however, 
that  these  men  were  little  interested  in  matters  of  procedure,  or  in 
recording  facts  concerning  the  development  of  institutions. 


224  BIBLIOGRAPHY 


MONOGRAPHS    AND    SPECIAL    STUDIES 

S.  B.  Crandall,  Treaties,  Their  Making  and  Enforcement  (New 
York,  1904;  2d  edition,  Washington,  1916).  This  work  originally- 
appeared  as  No.  1,  Vol.  XXI,  Columbia  University,  Studies  in 
History,  Economics,  and  Public  Law.  Part  1  deals  with  the  treaties 
of  the  United  States,  Part  2  with  those  of  foreign  nations,  while 
Part  3  is  given  over  to  a  discussion  of  "The  Operation  of  Treaties."' 
The  book  is  an  historical  treatment  of  the  subject,  and  is  based 
upon  wide  research  in  both  published  and  unpublished  sources, 
which  are  fully  indicated  in  numerous  footnotes.  It  contains  a 
wide  amount  of  information,  presented  in  such  form  as  to  be  readily 
accessible.  The  second  edition  is  revised  and  considerably  enlarged, 
and  includes  a  digest  of  the  decisions  of  American  courts  construing 
treaties. 

C.  H.  Butler,  The  Treaty-making  Power  of  the  United  States 
(New  York,  1902,  2  vols.)  is  an  extensive  description  and  analysis 
of  every  phase  of  the  treaty  power  of  the  nation.  It  is  useful  as 
a  reference  work,  and  in  the  footnotes  presents  a  vast  amount 
of  material  from  the  public  documents,  judicial  decisions,  the  works 
of  publicists,  the  papers  and  biographies  of  statesmen  and  jurists 
and  from  other  sources.  Chapter  X  (Vol.  I)  on  the  treaty-making 
power  and  the  relations  of  both  houses  of  Congress  thereto,  and 
Chapter  XIII  (Vol.  II),  on  the  treaty-making  power  as  it  has  been 
exercised  with  Indian  tribes  are  the  parts  of  the  work  which  bear 
most  directly  upon  the  subject  of  this  monograph. 

J.  B.  Moore,  Digest  of  International  Law  (Washington,  1900, 
8  vols.)  is  indispensable  to  the  student  of  any^  phase  of  American 
history  touching  upon  diplomacy  or  international  law  because  it 
contains  a  very  large  amount  of  source  material  not  elsewhere 
available  outside  of  the  archives  in  Washington,  and  brings  together 
the  best  work  of  American  and  foreign  authors  upon  the  topics 
treated. 

J.  C.  B.  Davis,  Notes  Upon  the  Foreign  Treaties  of  the  United 
States,  Treaties  and  Conventions  Concluded  Between  the  United  States 
of  American  and  Other  Poivers  since  July  4,  1776  (J.  H.  Haswell, 
editor,  Washington,  1889).  pp.  1219-1406.  "Davis's  Notes"  are 
familiar  to  all  students  of  American  diplomatic  history. 

Willis  F.  Johnson,  America's  Foreign  Relations  (New  York,  1916, 
2  vols.).  Although  deficient  in  its  treatment  of  the  revolutionary 
period,  this  book  is,  perhaps,  the  best  and  most  complete  exposition 
of  the  subject. 


BIBLIOGRAPHY  225 

J.  \\'.  Foster,  .1  Crtdurij  of  Annrican  DipUuiKicy;  Hiing  a  Hruf 
Reririr  of  the  Foreign  Rclolions  of  the  V  it  Hal  Stntcti  1776-1876  (Hos- 
ton,  lyOO).  A.  B.  Hart  (icclarcs  (Foundations  of  American  Foreign 
Policy)  that  this  is  the  stronjjest  book  on  American  diplomacy  since 
the  Civil  War.  It  is  useful  in  furnishinfi  a  general  outline  of  diplo- 
matic events. 

J.  W.  Foster.  The  Practice  of  Diplomacy:  As  Illustrated 
in  the  Foreign  Relations  of  the  United  States  (Boston,  1906).  This 
is  a  thorough  work  by  a  diplomat  and  a  scholar.  Chapter  XII, 
concerning  the  negotiation  and  framing  of  treaties,  and  Chap- 
ter XIII.  upon  their  ratification,  hear  directly  upon  the  subject 
of  this  monograph. 

Theodore  Lyman,  The  Diplomacy  of  the  United  States  (Boston, 
1828,  2  vols.),  although  obviously  antiquated,  is  still  useful  for  the 
period  covered  (1778-1S28).  It  contains  considerable  original 
material. 

Eugene  Schuyler,  American  Diplomacy  and  the  Furtherance  of 
Commerce  (New  York,  1886)  contains  little  or  no  material  bearing 
on  the  action  of  the  Senate  upon  treaties,  although  it  gives  a  fairly 
acceptable  outline  of  many  of  the  commercial  treaties  of  the  United 
States,  and  the  manner  of  their  negotiation. 

W.  H.  Trescot,  The  Diplomatic  History  of  the  Administrations  of 
Washington  and  Adams  (Boston,  1857)  contains  some  original  mate- 
rial which  throws  light  upon  the  action  of  the  Senate  on  the  Jay 
Treaty,  and  devotes  rather  more  space  than  do  most  authors  to  the 
activities  of  the  upper  house.  It  is  characterized  by  Bassett  (The 
Federalist  System)  as  "clear  and  fair,  but  not  brilliant." 

E.  S.  Corwin,  The  President's  Control  of  Foreign  Relations  (Prince- 
ton, 1917).  Chapter  III  of  this  work  contains  a  discussion  of  the 
relations  of  the  President  and  the  Senate  in  the  making,  enforce- 
ment, and  termination  of  treaties.  It  is  not,  however,  exhaustive, 
from  the  historical  .standpoint. 

E.  S.  Corwin,  National  Supreihacy.  Treaty  Power  vs.  State  Power 
(New  York,  1913).  Except  that  in  the  opening  chapter  the  author 
iliscusses  the  general  nature  of  the  treaty-power  as  conceived  of  in 
the  early  days  of  the  government,  his  work  has  little  direct  bearing 
upon  the  exercise  by  the  Senate  of  this  power  between  1789  and 
1817.  With  reference  to  the  activities  of  the  Senate  during  later 
periods  it  is  of  great  importance. 

Charles  H.  Burr,  The  Treaty-making  Power  of  the  United  States 
and  the  Methods  of  its  Enforcement  as  Affecting  the  Police  Powers 
of  the  States   (Proceedings  of  the  American   Piiilosoijhical  Society, 


226  BIBLIOGRAPHY 

Vol.  LI,  Philadelphia,  1912).  "The  Crowned  Essay  for  which  the 
Henry  M.  Phillips,  Prize  of  two  thousand  dollars  was  awarded,  on 
April  30,  1912,  by  the  American  Philosophical  Society."  As  its 
title  indicates,  the  general  purpose  of  this  essay  is  much  the  same  as 
is  that  of  Professor  Corwin's.  The  introductory  chapter,  which 
includes  an  excellent  sketch  of  the  evolution  of  the  treaty  clause 
of  the  Constitution  in  the  Federal  Convention,  will  be  found  valu- 
able in  any  study  of  the  treaty-power. 

Henry  Cabot  Lodge,  "  The  Treaty-making  Power  of  the  Senate," 
in  A  Fighting  Frigate,  and  Other  Essays  ami  Addresses  (New  York, 
1902)  is  a  stimulating  essay,  the  purpose  of  which  is  to  show  that 
the  Senate  has  the  power  to  participate  in  the  making  of  treaties 
at  all  stages,  from  negotiation  to  ratification,  and  that  they  ha^-e 
exercised  this  power  upon  a  great  many  occasions  from  1789  to  1902. 

Gaillard  Hunt,  The  Department  oj  State  of  the  United  States, 
Its  History  and  Fundiotts  (New  Haven,  1914).  This  is  an  able 
work  by  an  accomplished  scholar  who  is  particularly  well  qualified 
to  write  upon  this  subject  by  long  service  in  the  Department.  The 
book  is  useful  in  many  ways  to  those  who  study  any  activity  with 
which  the  Department  of  State  is  connected. 


INDEX 


Abrogation  of  Treaties  of  1778, 
and  Consular  Convention 
with  France.  114-118. 

Adams.  Henrv.  History  of  the 
United  States.  137,  139.  146. 
152,  157,  184.  188. 

Allen,  G.  W.,  Our  Navy  and 
the  Barbari/  Corsairs,  109, 
157. 

Adams,  John.  President  of  Sen- 
ate. 1 ;  treaties  of  administra- 
tion of.  107-129;  message  to 
Senate.  //(  re  French  treatv, 
1799.  122;  little  progress  \n 
development  of  foreign  re- 
lations committee  durmg  ad- 
ministration  of.   176. 

Adams.  John  Quincy.  nomi- 
nated as  minister  to  Prussia 
and  confirmed  after  opposi- 
tion. 112;  committee.  147.  180. 
200:  and  trt>aty  of  1805  with 
Tripoli.  156-168;  committee 
membership,  172;  opposition 
to  as  envoy  to  England.  187; 
Memoirs  oj  John  Q}iinry 
Adams,  24,  86.  143,  147,  160. 
162.    163.    164.    166,    167,    172. 

Advice,  of  Senate.  Washington 
seeks  as  to  course  with  Great 
Britain.  1790,  59;  precedent 
of  Jay  treaty  as.  to  obliga- 
tion of  President  to  seek.  79- 
80;  that  new  negotiations  be 
undertaken.  80-81  ;  upon  in- 
terpretation of  treaty  of  1788 
with  France.  102;  sought  and 
given  as  to  carrying  out 
debate  upon  propriety  of  to 
treaty  with  Algiers.  i02-103; 
President,  200-208. 

Advice  and  consent  of  Senate, 
obligation  of  Senate  to  give 
to  ratification  of  treaties  con- 


cluded by  President,  6-10;  to 
French  consular  convention 
of  1788.  4-10;  to  ratification 
of  treaties  with  Indian  tribes 
to  be  given  in  same  form  as 
to  that  of  foreign  treaties,  12- 
16;  to  ratification  of  treaty 
with  six  nations  refused  by 
Senate,  15-16;  coextensive 
with  power  to  "make 
treaties"  and  applies  to  en- 
tire process  of  treaty-making. 
17;  to  be  sought  by  President 
by  personal  conference.  18- 
20;  given  in  advance  to  pro- 
posed treatv  with  Creek 
Indians,  1789,  21-26;  given  in 
advance  to  proposed  addi- 
tional article  to  Creek  treaty 
of  1789,  27-28;  given  to  ratifi"- 
cation  of  Creek  treaty  of 
1789.  29;  given  in  advance  to 
proposed  treatv  with  Chero- 
kees.  1790.  30-32;  to  ratifica- 
tion of  Cherokee  treaty.  33- 
34;  withheld  to  ratification  of 
treaty  with  Wabash  and 
Illinois  Indians,  36-37;  to  ad- 
ilitional  articles,  Indian 
treaties,  39;  that  President 
negotiate  treaty  redeeming 
Algerine  captives,  43;  that 
President  su.spend  such  nego- 
tiations, 43-44;  privilege  of 
iiH'iubers  to  record  di.ssent  to 
resolution  of,  29.  71 ;  sought 
and  given  in  advance  to  pro- 
posed treaty  with  Spain.  1792, 
54-56;  to  ratification  of  Jay 
treaty,  74-83;  elTect  of  prece- 
dent of  Jay  treaty  upon  seek- 
ing in  advance,  79-80;  to  rati- 
fication of  treaty  of  1796  with 
Creek  Indians,  with  reserva- 


227 


228 


INDEX 


tion,  99;  when  sought  in  ad- 
vance created  obligation  to 
consent  to  ratification,  105; 
to  French  treaty  of  1800 
with  amendments,  121 ;  to 
ratification,  of  convention  of 
1802  with  Spain.  130-132;  to 
Louisiana  purchase  treaties, 
142;  to  ratification  King- 
Hawkesbury  convention,  with 
amendment,  148. 

Algiers,  treaty  with,  1795,  40- 
53;  Senate  consulted  as  to 
executing    treaty    with,    102; 

Amendment,  first  suggested  by 
President  in  case  of  treaty 
with  Wabash  Indians,  1793, 
35;  of  Jay  treat}',  75; 
authority  of  Senate  to  sug- 
gest, 77,  79;  of  Jay  treaty. 
77-82;  to  treaty  does  not  re- 
quire re-submission  if  other 
party  ratifies,  83-86;  to  treaty 
of  1796,  with  Creek  Indians 
failed,  98-99;  of  treatv  of 
1797  with  Algiers,  108-112;  of 
King-Hawkesburj'  conven- 
tion, 147;  Great  Britain  ob- 
jects to,  on  principle,  150- 
151 ;  of  treaties  by  U.S.  Sen- 
ate contrary  to  contemporary 
international  practice,  154- 
156. 

Anderson,  Joseph,  committee 
membership,  180,  183,  184, 
200;  upholds  power  of  Sen- 
ate to  participate  in  negotia- 
tion  of  treaties,  212. 

Attorney  General,  opinion  of  as 
to  consultation  of  Senate  in 
advance   of   negotiation,  38. 

Baldwin,  Abraham,  committee, 
131,  134,  160. 

Barbour,  James,  committee, 
193;  first  chairman  of 
Foreign  Relations  committee, 
194,  198. 

Barlow,  Joel.  U.S.  Consul  Gen- 
eral at  Algiers,  negotiates 
treaty  of  1797  with  Tunis, 
108. 


Bassett,  J.  S..  The  Federalist 
System,  58,  217. 

Baj-ard,  James  A.,  opposition  to 
as  envoy  to  England,  187; 
opposition  to  advice  to 
President.    201-202. 

Bibb,  W.  W.  committee,  190; 
re.solution,    198. 

Bingham.  William,  on  commit- 
tee,  108,   111,   112,   177. 

Bonaparte,  Joseph,  minister 
appointed  by  Napoleon  to 
treat  with  American  envov, 
1799. 

Bonaparte,  Napoleon.  and 
treaty  of  1800  with  France, 
116-117.  121,  123. 

Border  Posts,  retention  of  by 
England,  61. 

Bradlev.  S.  R..  committee,  131, 
134/160,  180,  182,  184;  and 
treatv  of  1805  with  Tripoli, 
160-167. 

Brown,  James,  committee,  190. 

Brown,  John,  committee.  52. 

Brown,  W.  G..  Life  of  Oliver 
Ellsworth.  63.  74,  75. 

Burr,  Aaron,  chairman  of  com- 
mittee on  treaty  with 
Wabash  and  Illinois  Indians, 
35;  opposition  to  ratification 
of  Jay  treaty,  75-83;  motion 
to  rescind  order  of  secrecy 
concerning   Jav   treatv,  89. 

Burr,  C.  H.,  The  Treaty-mak- 
ing Powers  of  the  United 
States  and  the  Methods  of 
Its  Enforcement  as  Affecting 
the  Police  Powers  of  the 
States.  2.  11,  225. 

Butler,  C.  H..  The  Treaty-mxik- 
ing  Poicer  of  the  United 
States,  11,  224. 

Butler,  Pierce,  chairman  com- 
mittee on  Algerian  captives, 
44,  59;  secomls  motion  rec- 
ommending new  negotia- 
tion with  Great  Britain,  80; 
introduces  resolution  to  re- 
quest President  to  obtain 
modification  Louisiana  Pur- 
chase treatv,  143. 


INDEX 


229 


Cabinet,  advice  of  as  to  con- 
sulting Senate  in  advance  of 
negotiations,  38;  advice  of  as 
to  re-submission  of  Jay  treat>' 
to  .Senate.  83-86. 

Cabot.  George,  vote.  36;  com- 
mittee. 33.  48  50,  52,  55;  one 
of  group  responsible  for  Jay 
mi.^sion.  63-73. 

Campbell,  (!.  \V..  committee, 
185. 

Caramalli,  Hamet,  and  treatv  of 
1805   with   Tripoli.   157-168. 

Carmichael.  William,  cammis- 
sioner  to  negotiate  treaty 
with    Spain.    54-55. 

Chadwick.  F.  E..  The  Rela- 
tions of  The  United  States 
and  Spain ;  Diplomacy,  54, 
130,  184. 

Channing.  Edward.  The  Jefjer- 
sonian  System.  137.  157,  218. 

Check  and  Balance  theory,  51. 

Cherokee  Indians,  treatv  of 
1791  with.  30-34. 

Chief  Ju.-^tice  of  United  States, 
selected  as  special  envoy  to 
England,  66-67;  opposition  to 
appointment  of  as  envoy  to 
England.  69. 

Claims,  convention  of  1802  with 
Spain  concerning.  130-136;  no 
claims  ever  adjusted  under  it, 
133. 

Clay,  Henrj',  committee,  184. 

Coleraine,  treaty  with  Creeks 
signed  at,  1796.  95. 

Committee,  use  of  system  in 
treaty  business  during  Wash- 
ington's administrations,  105; 
use  of  in  consideration  of 
convention  with  Spain,  1802. 
136;  of  foreign  relations.  Sen- 
ate, genesis  of,  169-195  (see 
foreign  relations,  commit- 
tee) ;  development  of  system 
in  Senate,  194. 

Congress,  appropriation  by  to 
ransom  Algerine  captives,  44 ; 
appropriation  for  Moroccan 
treaty,  53;  kept  informed  of 
British-American  affairs  by 
Washington,  61 ;  acts  of  said 


by  France  to  be  in  contr.i- 
vention  of  treaty  of  1788, 
101 ;  mformod  of  inadequacy 
of  appropriation  for  executing 
treaty  with  Algiers.  102;  de- 
clares treaties  of  1777  and 
consular  convention  abro- 
gated, 115;  .special  session  of 
to  consider  Louisiai.a  Pur- 
chase, 136. 

Congress,  of  Confederal  ion,  and 
French  consular  convention 
of  1788.  4-9;  rejected  Jay- 
Gardoani   treaty,  56. 

Congress,  Continenttil,  ludiaa 
treaties  signed  under  author- 
ity of,  1 ;  authorized  conclu- 
sion of  consular  convention  oi 
1788  with  France,  4,  6-10. 

Con.sul.  First,  of  France,  soe 
Bonaparte.   Napoleon. 

Correspondence,  diplomatic, 
called  for  by  Senate,  112,  159- 
160;  submitted  to  Senate, 
131.  134.  160-161. 

Council  of  Advice.  Senate 
thought  to  be.  upon  treaties 
and  appointments,  6;  Senate 
acts  in  capacity  of,  44-45; 
Washington's  attitude  to- 
wards Senate  as,  59;  treated 
as.  79;  Washington's  expe- 
rience showed  that  Senate 
could  not  well  be,  103-104. 

Crandall.  S.  B..  Treaties,  Their 
Making  and  Enforcement,  83. 
85,  208.  224. 

Crawford.  W.  H..  and  story 
that  Washington  swore  that 
he  ne\-er  would  go  to  Senate 
again,  23-24;  committee.  183. 
184.  185. 

Creek  Indians,  treatv  of  1789 
with,  16-29;  treatv  of  1796 
with.  95-100. 

Dana,  S.  W..  committee.  193. 

Davie.  William  R..  appointed 
Mini.-iter  to  France  in  place 
of  Patrick  Heniv.  115. 

Davis,  J.  C.  B..  'Notes  Upon 
Foreign  Treaties  of  the 
United  States,  4,  53.  115  130. 


230 


INDEX 


Dayton,    Jonathan,    committee, 

n9. 

Deas.  W.  A.,  American  charge 

at  London,  and  ratification  of 

Jay  treaty,  86-87, 
D'Engestrom,   Count,    Minister 

of    Foreign    Affairs.    Sweden, 

214-215. 
Dexter,  Samuel,  committee,  112. 
Duponceau,  P.  S.,  134. 

Eaton,  William,  and  treaty  of 
1805  with  Tripoli,   157-159. 

Ellsworth,  Oliver,  vote.  36;  on 
Senate  committee,  41,  48,  50, 
52,  101,  174;  one  of  group 
responsible  for  Jay  mission, 
63-73;  Chief  Justice,  ap- 
pointed Minister  to  France, 
1799,  115. 

Famin,  Joseph.  negotiates 
treaty  of  1797  with  Tunis, 
108. 

Foreign  Affairs.  Secretary  of, 
and  French  consular  conv'en- 
tion  of   1788,  4-10. 

Foreign  Relations.  Senate  Com- 
mittee on,  group  similar  to, 
73;  genesis  of.  1805-1815, 
169-195;  antecedents  during 
Washington's  administration, 
170-172;  grew  out  of  legisla- 
tive activities  of  Senate,  172; 
members  chosen  by  ballot, 
172;  development  from  select 
committees,  174-175;  non-ex- 
istence of  during  Washing- 
ton's administrations,  175; 
little  conscious  development 
during  John  Adams's  admin- 
istration, 176;  no  .such  com- 
mittee, 1798,  178;  real  but 
not  recognized  during  second 
Jefferson  administration,  179; 
development  of  after  1807, 
181;  referred  to  as  such,  186; 
monopoly  of  business  of 
foreign  relations,  189;  a 
quasi-standing  committee, 
191 ;  report  of  on  burning 
New      York,      191-192;      and 


Treaty  of  Ghent,  192;  first 
standing  committee  of  Sen- 
ate, 193;  summary  of  de- 
velopment  of,   194-195. 

Formative  Period,  Senate  and 
treaties  at  end  of,  196-215. 

Fort  Hamar.  treaties  of,  finst 
treaties  to  be  submitted  to 
Senate,  1.  4;  considered  by 
Senate,  11-16;  one  of  them 
the  first  treaty  to  fail  of  rati- 
fication by  Senate,  15-16. 

Foster,  Dwight.  vote.  36. 

Foster,  J.  W..  A  Century  of 
American  Diplomacy,  58,  61, 
115,  135,  225. 

Foster,  J.  W..  The  Practice  oj 
Diplomacy,  9.  225. 

Fox,  Charles  James,  and  ratifi- 
cation of  amended  King- 
Hawkesbury  convention,  152. 

France,  consular  convention  of 
1788  with.  4-10;  interpreta- 
tion of  treaty  of  1788  with, 
101-102;  Senate  amendments 
to  treaty  of  1800  with.  114- 
126;  seizure  and  condemna- 
tion of  American  ships  in 
Spanish  ports  by.  131 ;  Louisi- 
ana treaty  witli.   136-145. 

Franklin,  Benjamin,  concluded 
consular  convention  of  1788 
with  France,  4. 

Franklin.  Jesse,  committee.  185. 


Gaillard.  John,  committee.  180. 

Gallatin,  Albert,  opinion  upon 
simultaneous  submi.-^sion  of 
treaty  to  Senate  and  House, 
140;  opposition  to  appoint- 
ment of  as  envov  to  England, 
187;  The  Writings  of  Albert 
Gallatin  (Henrv  Adams  ed.), 
141. 

Georgia.  relations  between 
State  of.  and  Creek  Indians, 
95-100;  legislature  requests 
federal  government  to  con- 
clude treaty  with  Creeks,  95; 
opposition  of  to  Creek  treaty, 
97-98,  100:  re.servation  to  pro- 
tect rights  of.  99. 


INDEX 


231 


German,  Obediah,  presents  res- 
olution, 183. 

Client.  Treaty  of,  192.  196-197, 
203. 

Gibbs,  George,  Mc7noirs  oj  the 
Administrations  of  Washing- 
ton and  John  Adams,  64,  68, 
90. 

Giles.  W.  B..  committee  mem- 
berships, 180,  182.  183,  184, 
185. 

Gilman,  Nicholas,  committee, 
182. 

Goodhue,  Benjamin,  commit- 
tee. 112,  177. 

Goodrich.  Chauncv,  commit- 
loe.  182.  184. 

Great  Britain,  and  relations 
with  Indians  of  Northwest, 
38-39;  relations  with  leading  to 
Jay  treaty,  58-65;  and  ratifi- 
cation of  Jay  treaty,  86-87; 
and  King-Hawkesbury  con- 
vention. 145-156;  Treaty  of 
Ghent  with,  192.  196-197,"203; 
commercial  convention  of 
1815  with,  197;  proposed  de- 
mands upon.  1806.  200;  pro- 
posal to  settle  differences 
with.  203-204. 

Greenville.  Treaty  of,  37-38. 

Gregg,  Andrew,  committee 
memberships,   180,   185. 

Grenville,  Lord,  Secretary  of 
State  for  Foreign  Affairs,  and 
ratification  of  Jay  Treaty, 
86-87. 

Gunn,  James,  vote  81.  intro- 
duced resolution  advising 
further  negotiation  with 
Great  Britain  after  conclu- 
sion of  Jay  treaty,  81 ;  com- 
mittee, 177. 

Hamilton,  Alexander,  .suggested 
and  considered  as  special  en- 
voy to  Great  Britain.  65-67; 
withdraws  name  and  suggests 
Jay,  67;  a.ssists  in  drafting 
instructions  to  Jay.  72-73;  ad- 
vised amendment  of  Jay 
treaty,  75-76;  opinion  as  to 
re-submission   of  Jay   treaty. 


84-85;  opinion  on  treaty  of 
1800  with  France,  118.  121; 
IForA's  of  Alexander  Hamil- 
ton (Constitutional  edition), 
67.  73,  76.  90,  119. 

Hamilton,  J.  C,  History  of  the 
Republic  oj  the  United 
States  oj  America,  64,  67,  70, 
73.  76.  121.  127. 

Hammond.  George.  Minister  of 
England  to  United  States, 
38.  61-62. 

Hancock.  John.  Governor 
Massachusetts.  communica- 
tion on  Briti.'jh  relations.  59. 

Harlow,  R.  V.,  History  oj 
Legislative  Methods  jor  the 
Perani  Bejore   1825,   170. 

Harrowby,  Lord,  and  ratifica- 
tion of  King-Hawkesbury 
convention,  149-156. 

Hawkesbury,  Lord,  and  King- 
Hawkcsburv  convention.  145- 
146. 

Hawkins.  Benjamin,  committee, 
59. 

Henry,  Patrick,  appointed 
Minister  to  France,  1799, 
115. 

Hildreth,  Richard.  History  oj 
the  United  States,  157,  184. 

Hillhouse,  James,  committee, 
180. 

Hosmer,  J.  K.,  History  oj  the 
Louisiajin   Purchase,    137. 

House  of  Representatives,  and 
appropriation  for  proposed 
Algerine  treaty,  44,  46-51 ; 
kept  informed  of  negotia- 
tions, 51-52;  discussion  by 
Jefferson's  cabinet  of  pro- 
priety of  submitting  of 
treatv  to  before  Senate  ac- 
tion. 139-142. 

Howell,  J.  B.,  committee,  185. 

Humphreys,  F.  L.,  The  Life 
and  Times  oj  David  Hum- 
phreys, 157. 

Indcmnitv.  demanded  from 
France.  1799.  115-121. 

Indian  Tribes,  two  treaties 
with  first  treaties  to  be  sub- 


232 


INDEX 


mitted  to  Senate,  1,  4; 
treaties  of  Fort  Harmar  with, 
11-16;  advice  and  consent  to 
treaties  with  to  be  given  in 
same  form  as  to  foreign 
treaties,  12-16;  other  treaties 
with  during  Washington's  ad- 
ministrations, 21-39;  impor- 
tance of  treaties  with  in 
development  of  treaty-mak- 
ing process.  103;  See  also. 
Creek  Indians,  Cherokee 
Indians,   Six    Nations. 

Ingersoll.  Jared.  134. 

Instructions  to  Minister,  obliga- 
tion to  ratify  treaty  conclu- 
ded in  accordance  with.  7-10. 
32-34;  advice  of  Senate  asked 
as  to,  prior  to  negotiation  of 
Creek  treatv.  and  given,  22- 
23,  27-28;  to  General  Put- 
nam, Senate  not  consulted 
concerning,  35 ;  to  Carmichael 
and  Short,  56;  to  Pinckney, 
57;  to  Jay  not  submitted  to 
Senate,  70-51 ;  drafted.  72- 
73;  to  Adams  upon  treaty  of 
1799  with  Prussia  called  for 
by  Senate,  and  .submitted;  to 
Ministers  to  France  1799. 
115-116;  to  Ministers  to 
France  submitted  to  Senate. 
118;  to  Monroe  for  amend- 
ment of  King-Hawkesbury 
convention,  148;  to  Lear  de- 
manded bv  Senate.  159-161 ; 
to  Jonathan  Russell,  211. 

Interpretation,  of  treaty  with 
France,  Senate  called  upon  to 
assist  in,  101-102. 

Izard,  Ralph,  committee.  46, 
101. 


Jackson.  Francis  James.  Min- 
ister from  Great  Britain,  182. 

Jackson.  James,  committee,  124. 
131.  134. 

Jay.  John.  Secretary  for  For- 
eign Affairs,  and  consular 
convention  with  France.  1788. 
4-9 ;  suggestion  for  settlement 
of  St.  Croix  River  boundarv 


dispute.  60;  Chief  Justice,  de- 
cided that  he  should  be 
envoy  to  England,  66-67; 
decides  to  accept,  (57;  confir- 
mation opposed,  69-71;  con- 
firmed, 71.  The  Corre- 
spondence and  Public  Papers 
of  John  Jay,  68,  74. 

Jay  Treaty,  58-94;  placed  in 
hands  of  President,  74; 
amended,  75-83;  Senate  con- 
sents to  ratification,  82-83; 
ratified  by  England.  86-87; 
proclaimed.  88;  influence  of 
upon  development  to  treaty- 
making  powers  of  Senate, 
summary,  91-94;  article  ex- 
planatory of.  107. 

Jay-Gardoqui  treaty,  53. 

Jefferson.  Thomas,  and  con- 
sular convention  of  1788  with 
France,  4.  8;  messages  on 
Mediterranean  commerce.  41- 
43 ;  opposes  independence 
from  House.  47;  report,  50; 
believed  that  Senate  should 
be  consulted.  55;  his  in- 
structions to  Carmichael  and 
Short,  56;  commercial  re- 
port, 62;  considered  as  possi- 
ble special  envoy  to  England. 
66 ;  criticises  French  treatv  of 
1800.  118;  and  exchange  of 
ratifications  of  French  treaty, 
1799,  123;  Senate  and  treaties 
of,  130-168;  and  Louisiana 
Purchase,  136-145;  The  Writ- 
iiigs  of  Thomas  Jefferson 
(Definitive  edition).  41,  46. 
47,  85,  113,  118;  (Ford  edi- 
tion), 140. 

Johnson,  Samuel,  committee, 
59. 

King.  C.  R.,  Life  and  Corre- 
spondence of  Rufus  King,  64. 
65.  66,  67.  70,  71,  72,  76,  119, 
120,  129.  147.  161. 

King,  Rufus.  on  Senate  com- 
mittee. 41.  44.  46.52,  101,  174, 
190;  one  of  group  responsible 
for  Jay  mission,  63-73;  and 
ratification  of  Jay  treaty,  76; 


INDEX 


233 


and  King-Hawkesbury  con- 
vention, 145-lo6;  member 
committee  on  Foreign  Rela- 
tions. 1S15-1823,  194  n.;  mo- 
tion bv.  197;  resolution,  203- 
207. 

King-Hawkesburv  Convention. 
14.5- loO. 

Knox.  General  Henry,  lays 
Indian  treaties  before  Senate, 
1 ;  report  of  concerning  con- 
clusion of  Fort  Harmar 
treaties  with  Indian  tribes, 
12,  13.  14;  delivered  message 
from  President  to  Senate.  14; 
first  Secretary  of  War  under 
new  government.  14. 

Lacock,  Abner.  committee,  193; 
committee  on  foreign  rela- 
tions three  years.  194 

Langdon,,  John  chairman  com- 
mittee on  Meditterranean 
trade  and  Algerine  captives. 
41,  42-43;  member  committee, 
44.  52.  55.  174. 

Laurence,  .John,  committee.  177. 

Law.  international,  rule  of  that 
principle  bound  to  ratify 
concluded  by  plenipotentiary 
acting  in  accordance  with  his 
instructions.  7.  9-10. 

Leib,  Michael,  committee.  182. 

Lear.  Tobias,  and  treatv  with 
Tripoli.   1805.   157-159,"  162. 

Livingston.  Edward,  134. 

Livingston,  Robert  R.,  minister 
to  France,  137. 

Lloyd,   James,   committee,   185. 

Lodge.  Senator  H.  C,  opinion 
of  as  to  proper  role  of  Senate 
in  treaty-making  during 
period  of  negotiation.  17-18; 
The  Treaty-Making  Powers 
oj  the  Senate,  17.  156;  Life 
and  Letters  of  George  Cabot, 
64;  Oliver  Ellsworth.  64. 

Logan.  George,  committee.  124. 

Logan  Act.  alleged  violation  of 
by  five  New  York  lawyers  in 
connection  with  Spani.sh  con- 
vention of  1802.   133-135. 

Louisiana,  Purchase  of,  136-145. 


Lyman,  Theodore,  The  Diplo- 
maey  of  the  United  States, 
109,  113.  115.  157.  160,  225. 

McConachie,  L.  G.,  Congres- 
sional Committees,  170. 

McKean.  J.  B.,  134. 

McLaughlin.  A.  C.  Western 
Posts  and  British  Debts,  61. 

McMaster,  J.  B..  History  of  the 
People  of  the  United  States, 
58.  74.  84.  87,  90.  115.  130. 
135,  137.  157. 

Maclay.  William.  The  Journal 
of  Williatn  Maclay  (ed. 
1890),  1.  23.  27. 

Mason.  Nathaniel,  committee, 
193,  194n. 

Madison,  James,  resolutions 
proposing  retaliation,  62 ; 
opinion  of  upon  simultaneous 
submission  of  treaty  to  Sen- 
ate and  House,  139;  The 
Writi7igs  of  James  Madison 
(Hunt  edition),  74, 

Marshall.  Humphrey,  80. 

Mason,  Stevens  T..  violates 
order  of  secrecv  imposed  hv 
Senate.  90-91. 

Mediterranean,  American  trade 
in.  41-42;  British  blamed  for 
depredations  upon.  61;  treaty 
of  1797  with  Tunis  to  protect, 
and   regulate,   108-112,    172. 

"Mediterranean  Fund,"  con- 
nection of  with  ratification  of 
treatv  of  1805  with  Tripoli. 
158.  165-167. 

Merry.  Anthony,  151. 

Milledge,  John,  committee 
180. 

Mississippi  River,  right  to 
navigate  sought  from  Spain. 
53-57. 

Mitchell.  S.  L..  committee 
memberships,  180 ;  upholds 
Senate's  prerogati\'es  as  coun- 
cil of  President.  202. 

Monroe.  James,  minister  to 
France,  137 ;  and  attempts  to 
secure  British  ratification  of 
King-Hawkesbur>-  con\'en- 
tion.    148-153;    and  treaty  of 


234 


INDEX 


1816,  with  Sweden  and  Nor- 
way, 209-215;  Writings  oj 
James  Monroe,  149.  150 

Moore.  J.  B.,  Digest  oj  Interna- 
tional Law,  2.  6.  9.  58,  115, 
118,  130.  137.  154.  182.  217. 

Morocco,  treaty  of  1787  with, 
41-43,  52-53, 

Morris.  Gouverneur,  mission  to 
England.  59-61 ;  committee, 
118,  174;  Diarxj  and  Letters 
of  Gouverneur  Morris,  120, 
122.  127. 

Morris.  Robert,  committee.  41. 
44,  46,  48,  55.  100;  associated 
with  group  responsible  for 
Jay  mission.  63-73. 

Most  Favoretl  Nation  Clause, 
treaty  of  1797  with  Tunis 
amended  by  Senate  to  avoid 
conflict  with,  in  other  treaties, 
109-112. 

Murray,  W.  V..  appointed  min- 
ister to  France.  1799,  115. 

Negotiation  of  Treaties.  Senate 
requests  and  receives  infor- 
mation concerning  negotia- 
tion of  French  consular  con- 
vention of  1788,  5.  6.  7; 
proper  role  of  fcenate  in.  as 
imderstood  in  1789,  16-29; 
Senate  participation  in  illus- 
trated bv  P^rench  treaty  of 
1800.  124-126;  Senate  has 
authoritv  to  .suggest.  142-145; 
Senate   and,   199-208. 

Nichols,  W.  C,  committee.  119. 
147;  warns  Jefferson,  139. 

Nomination,  presidential  right 
of  under  constitution.  17;  of 
Jay  to  be  .special  envoy  to 
England,  68-71 ;  of  commis- 
sioners to  negotiate  treaty 
with  Creek  Indians.  97;  con- 
trol of  Senate  over  as  a 
means  of  influencing  treatv- 
making.  113-114,  137.  188.  196. 

Ocmulgee  River.  95. 
Oconee  River,  95. 
Ogg,  F.  A..  The  Opening  oj  the 
Mississippi,  137. 


Patterson.  William,  committee,. 
59. 

Philadelphia,  frigate,  158. 

Phillips.  U.  B.,  Georgia  and 
States  Rights,  21.  95,  96. 

Pickering.  Timothy,  Secretary 
of  State,  gives  instructions  to 
Ministers  to  France,  115-116; 
declares  treaty  with  France. 
1800,   IS   reprobated,   119. 

Pmckney.  Charles,  negotiates 
convention  of  1802  with 
bpain.  130-132. 

Pinckney,  Thomas,  Minister  to 
England,  nominated  as  en- 
voy extraordinary  to  Spain, 
56" 

Pope,  John,  committee,  182, 
183.    184.    185. 

Power,  treaty-making.  Consti- 
tutional grant  of,  2,  16-17; 
exercised  as  necessity  de- 
manded in  crisis,  63;  de- 
velopment of  as  influenced  by- 
Jay  treaty,  91-94;  guarded 
well  by  Senate,  135;  under 
Constitution  explained  to 
Swedish  government,  211-215. 

Precedents.  importance  of 
those  set  during  Washing- 
ton's administration,  2-3;  as 
to  consultation  of  Senate 
prior  to  negotiation.  Jay 
treaty,  79. 

President  of  United  States,  pro- 
cedure when  he  shall  com- 
municate with  Senate  in  writ- 
ing, or  personally.  20;  rela- 
tions of  to  Senate  and  Hou.se 
in  concluding  treaties  re- 
cjuiring  money.  44-51 ;  Senate 
committee  confers  with.  46; 
relati^•e  powers  of  Senate 
and,  in  negotiation  of  trea- 
ties. 16-18;  personal  consul- 
tation with  Senate,  18-26; 
keeps  House  and  Senate 
equally  informed  of  nego- 
tiations. 51 ;  relations  of.  with 
Senate  and  House  in  Anglo- 
American  negotiations.  1790- 
1796.  58-94;  effect  of  .Jay 
treaty     upon     obligation     to 


INDEX 


235 


consult  Senate  prior  to  nego- 
tiation of  treaties.  77-80; 
proper  relations  with  Senate 
during  negotiation,  198-208. 

Printed,  treaties  usually  ordered 
to  be  by  1797,  107-108. 

Procedure,  rules  for  upon  trea- 
ties, adoption  by  Senate  of 
first  standing  rules  on,  126- 
129;  of  Senate  for  treaty 
business.  1814.  197-199. 

Prussia,  treaty  of  1799  with. 
112-114. 

Putnam,  General  Israel,  con- 
cluded treaty  with  Wabash 
and  Illinois  Indians.  1793. 


Randolph.  Edmund.  Secretar>- 
of  State,  and  Jay  treaty.  68. 
72-73,  84-85. 

Ratification,  obligation  of  Sen- 
ate to  consent  to  ratification 
of  treaties  concluded  by 
President.  6-10;  of  French 
Consular  Conyention  of  1788. 
4-10;  of  treaties  with  Indian 
tribes  to  be  in  same  form  as 
that  of  foreign  treaties.  12- 
16;  of  treaty  with  Six  Na- 
tions refused  by  Senate.  15- 
16;  of  Jay  treaty  with 
amendment,  82-83 ;  condi- 
tional, does  not  require  re- 
submission of  amendments  to 
Senate,  83-86;  of  amended 
Jay  treaty  by  Great  Britain 
without  protest,  86-87;  of 
French  treaty  of  1800  ad- 
vised, with  amendments.  119- 
121 ;  in  imusual  form  referred 
to  Senate,  123-124;  of  treaties 
with  amendments  declared  by 
Great  Britain  to  be  contrarj- 
to  law  of  nations  and  not  to 
be  tolerated.  149-153 ;  of  trea- 
ties with  amendments,  an  in- 
noyation  necessary  under 
American  system.  154-156;  of 
treaty  of  1816  with  Sweden 
and  Norway,  with  amend- 
ments. 208-215. 
Rawle,  William,  134. 


Read.  Jacob.  80;  committee, 
108.  112. 

Reconsideration  of  questions 
concerning  treaties.  Senate 
adopts  rule  concerning,  129; 
of  decision  to  con.sent  to 
ratification  of  Spanish  treaty. 
1802.  131. 

Reeyes,  J.  S.,  American  Diplo- 
macy Under  Tyler  and  Polk. 
145. 

Rejection,  by  Senate  of  treaty 
\vith  Wabash  and  Illinois 
Indians.  36;  of  three  articles 
of  conyention  of  1816  with 
Sweden  and  Norway.  209. 

Reseryation.  to  ratification  of 
Creek  treaty  of  1796,  99. 

Richardson,  J.  D..  A  Compila- 
tion of  the  ^Messages  and 
Papers  of  the  Presidents, 
1789-1902.  21,  41,  52,  60,  74, 
96,  136,  137.  176.  177,  190,  223. 

Robinson.  Jonathan,  committee. 
185. 

Rush.  Richard,  Secretary  of 
State,  and  treaty  of  1816  with 
Sweden  and  Norway,  209- 
215. 

Russell.  Jonathan,  opposition 
to  as  minister  to  Sweden. 
187;  and  commercial  conyen- 
tion of  1816  with  Sweden,  198. 

St.  Croix  Riyer  Boundary,  60. 
107. 

San  Lorenzo  el  Real,  treatj'  of. 
53-57. 

Schouler.  James,  History  of  the 
United  States,  121.  157. 

Secrecy  of  Senate.  Washington 
held  low  opinion  of,  46 ;  upon 
Jay  treaty  yiolated,  88-91 ;  in- 
junction of.  198. 

Sedgwick.  Theodore,  commit- 
tee, 108. 

Sherman.  Roger,  committee, 
33. 

Short,  William,  commi.-Jsioner 
to  negotiate  treaty  with 
Spain,  54-55. 

Session,  executiye.  Senate  met 
in.  42 ;  Secret,  184. 


236 


INDEX 


Six  Nations,  treaty  with,  12-16, 

Smith.  Israel,  opposes  advice  to 
President,  200-201. 

Smith.  John,  upholds  Senate's 
power  to  advise  negotiation 
of  treaties,  203. 

Smith,  Samuel,  committee,  159. 
160,  163,  180,  184.  200;  and 
treatv  of  1805  with  Tripoli, 
159-167;  resolution  by,  197. 

Spain,  treaty  of  1795  with.  53- 
57;  convention  of  1802  withj 
130-136. 

Special  Session,  of  Senate  to 
consider  Jay  treaty,  74. 

State,  Secretary  of,  report  on 
capture  of  American  seamen 
by  Algerines.  41 ;  on  com- 
merce in  ]\Iediterranean.  41 ; 
on  Algerine  prisoners,  42-51. 
passim;  personal  appearances 
in  Senate,  104. 

Strong,  Senator  Caleb,  vote.  36; 
on  Senate  committee.  41.  44, 
59.  101,  174;  one  of  group 
responsible  for  Jav  mission, 
63-73. 

Sumter.  Thomas,  and  treatv  of 
1805  with  Tripoli,  163-167; 
committee,  180-184. 

Sweden,  opposition  to  nomina- 
tion of  J.  Q.  Adams  as 
minister  to,  112;  opposition 
to  sending  a  minister  to.  187; 
commercial  convention  of 
1816  with.  198-199.  and  Xor- 
wav.  ratification  of  treatv  of 
1816  with,  208-215. 


Tavlor.  John,  committee.  185. 
190. 

Tazewell.  Henry,  opposed  con- 
firmation of  J.  Q.  Adams  as 
minister   to   Sweden,   113-114. 

Tracv,  Uriah,  committee,  124, 
159,  160.  164,  165.  177;  resolu- 
tion concerning  treaty  of  1805 
with  Tripoli.  1.59-167'. 

Trescott,  W.  H.,  The  Diplo- 
matic History  of  the  Admin- 
istration of  Washington  and 
Adams,  58,  70.  86.  225. 


Tripoli,    proposed    treatv   with, 

45;  treatv  of  1796  with,  107; 

treaty  of  1805  with,  156-168. 
Tunis,    proposed    treatv    with. 

45;  treaty  of  1798  with,  108- 

112. 

Varnum,  J.  B..  committee,  185. 
Vertitude,  French  privateer,  177. 

War.  Secretary  of,  appears  be- 
fore Senate  in  connection 
with  Indian  treaties.  14; 
appearance  of  in  Senate  in- 
dicates personal  relations  be- 
tween President  and  Senate, 
104.- 

Washington,  George,  relative 
powers  of  President  and  Sen- 
ate in  treaty-making  during 
administration  of,  1-2;  opin- 
ion that  treaties  with  Indian 
tribes  should  be  ratified  in 
form,  14-15;  opinion  upon 
nominations  and  treaties,  18- 
20;  seeks  advice  of  Senate 
personally.  21-26;  during 
negotiation  of  Creek  treaty, 
27-28;  seeks  advice  of  Senate 
prior  to  negotiation  of  Chero- 
kee treaty,  30-31 ;  suggests 
I'atification  of  treaty  with 
amendment.  35;  and  treaty  of 
Green\-ille.  37-38;  and  treaty 
with  Algiers.  1795,  40-51,  pas- 
sim; has  no  confidence  in 
secrecy  of  Senate,  46;  asks 
Senate  advice,  1790.  59;  and 
Jay  mission,  58-74;  early 
attitude  towards  Senate  as 
council  of  advice  in  foreign 
affairs,  59;  face  set  against 
war  with  England,  62 ;  con- 
sults Cabinet  as  to  re-sub- 
mission of  Jay  treaty,  83-86; 
summary  of  treaty-making 
during  administrations  of. 
103-106;  The  Writings  of 
George  Washington  (Ford 
ed.),  18   19.  20.  83.  84. 

Watson.  James,  committee,  112. 

West     Florida,     boun<iary     be- 


INDEX  237 

tween  United  States  and,  53,  mittce,   159,   1S5;    opposition 

184.  to  advice  to  President,  201. 

West  India  Trade,  64-65,  75-76.  Wright,     Robert,     146;     com- 

83.  niittee,  147.  160.  165. 

Wolcott.  Oliver,  90. 

Worthington,     Thomas,     com-  Yazoo  land  sale.  96, 


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THE  WAR  WITH   MEXICO      1846-1848 

By  JUSTIN  H.  SMITH 

Formerly  Professor  of  Modern  History  in  Dartmouth  College; 

Member  of  Massachusetts  Historical  Society,  etc. 

Author  of  "Annexation  of  Texas,"  etc. 

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author  to  examine  every  pertinent  document  belonging  to  the  two 
governments.  In  addition  to  these  almost  numberless  documents, 
an  immense  quantity  of  material  contained  in  local  archives,  the 
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important  and  many  surprising  facts  have  come  to  light.  This 
whole  narrative  of  our  war  with  Mexico,  while  thorough-going  and 
accurate  in  substance,  is  full  of  movement,  personalitj*  and  color, 
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CHAPTER  CONTENTS 
Volume  n 
Behind  the  Scenes  at  Mexico 
Vera  Cruz 
Cerro  Gordo 
Puebla 

On  to  the  Capital 
Contreras  and  Churubusco 
Negotiations 
Molieo  del  Riz 
Chapultepec  and  Mexico 
Final  MiUtary  Operations 
The  Naval  Operations 
The  Americans  as  Conquerers 
Peace 

The  Finances  of  the  War 
The  War  in  American  Politics 
The  Foreign   Relations  of  the  War 
Conclusion 

INDEX 
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dix with  lists  of  sources. 

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CHAPTER  CONTENTS 
Volume  I 
Mexico  and  Mexicans 
The  Political  Education  of  Mexico 
The    Relations  Between   the   United 

States  and  Mexico,  1825-1843  and 

1843-1846 
The  Mexican  Attitude  on  the  Eve  of 

War 
The  American  Attitude  on  the  Eve 

of  War 
The  Preliminaries  of  the  Conflict 
Palo  Alto  and  Resaca  de  Guerrero 
The  United  States  Meets  the  Crisis 
The  Chosen  Leaders  Advance 
Taylor  Sets  Out  for  SaltiUo 
Monterey,  Saltillo,  Parras,  and  Tam- 

pico,  Santa  Fe 
Chihuahua,  The  California  Question 
The  Conquest  of  California 
The  Genesis  of  Two  Campaigns 
Santa  Anna  Prepares  to  Strike 
Buena  Vista 


A  Brilliant  Book  by  the  Author  of  "  The  Education  of 
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THE   DEGRADATION    OF   THE 
DEMOCRATIC   DOGMA 

BY   HENRY   ADAMS 
With  Introductory  Material  by  his  Brother,  Brooks  Adams 

The  publication,  a  year  ago,  of  The  Education  of  Henry  Adams, 
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The  essays  include  The  Tendency  of  History,  a  communication 
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the  democratic  ideal,  is  the  synonym  not  of  perfect  truth  but  of 
disaster  and  confusion." 

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those  interested  in  the  theories  of  education.  They  are  unusually 
suggestive,  and  expressed  in  lucid  terms  because  Henry  Adams 
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(E1602810)476B  "'"''^"g^.^ei^^'^*'""' 


YD033i;28 


LIBRARY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

THIS  BOOK  IS  DUE  BEFORE  CLOSING  TIME 
ON  LAST  DATE  STAMPED  BELOW 


(VIAR  ^6  Vjd^ 


i^'u-mn 


ttr;0.i>r>v 


NOV  1  -  1966 


fftECClVEP 


HB\)1    '£e'5PN< 


LOAN  ©EPT. 


LD  62A-207/i-9,'63 
(E709slO)9412A 


General  Library 

University  of  California 

Berkeley 


M':i.!'i!M!in:!i:l;lIliili 


